September v. Committee

• Decision Date: 16 April 2013
• Docket Number: Docket No. 11–3509–cv.,Docket No. 11–3508–cv.,Docket No. 11–3494–cv.,Docket No. 11–3500–cv.,Docket No. 11–3511–cv.,Docket No. 11–3490–cv.,Docket No. 11–3510–cv.,Docket No. 11–3496–cv.,Docket No. 12–1457–cv.,Docket No. 11–3506–cv.,Docket No. 11–3501–cv.,Docket No. 11–3505–cv.,Docket No. 12–1459–cv.,Docket No. 12–949–cv.,Docket No. 11–3502–cv.,Docket No. 11–3495–cv.,Docket No. 11–3503–cv.,Docket No. 11–3294–cv(L).,Docket No. 12–1458–cv.,Docket No. 11–3407–cv.,Docket No. 11–3507–cv.
• Citation: 714 F.3d 109
• Parties: 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.
• Court: U.S. Court of Appeals — Second Circuit

714 F.3d 109

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.

Sean P. Carter (Stephen A. Cozen, Elliott R. Feldman, Cozen O'Connor, Philadelphia, PA; Ronald L. Motley, Robert T. Haefele, Motley Rice, LLC, Mount Pleasant, SC; Carter G. Phillips, Richard Klingler, Sidley Austin, LLP, Washington, DC; Andrea Bierstein, Hanly Conroy Bierstein Sheridan Fisher & Hayes, LLP, New York, NY; Robert M. Kaplan, Ferber Chan Essner & Coller, LLP, New York, NY; James P. Kreindler, Justin T. Green, Andrew J. Maloney, III, Kreindler & Kreindler LLP, New York, NY; Jerry S. Goldman, Anderson Kill & Olick, P.C., New York, NY; Chris Leonardo, Adams Holcomb LLP, Washington, DC, on the brief), Cozen O'Connor, Philadelphia, PA, for Plaintiffs–Appellants on Foreign Sovereign Immunities Act Issues.

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

Before: CABRANES, RAGGI, Circuit judges, and RAKOFF, District Judge. ^**

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”), 18 U.S.C. § 2333, the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note, as well as various common law tort claims against purported charities, financial institutions, and other individuals who are alleged to have provided support and resources to Osama Bin Laden and al Qaeda. The United States District Court for the Southern District of New York (George B. Daniels, Judge ), granted judgment in favor of seventy-six defendants, dismissing them on various grounds, including: (1) lack of personal jurisdiction; (2) failure to state a claim upon which relief can be granted; and (3) immunity from suit pursuant to the Foreign Sovereign Immunities Act (“FSIA”).

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. See28 U.S.C. § 1604. The question addressed in this opinion is whether the actions of the SJRC and the SRC satisfy the requirements of the noncommercial tort exception, which provides an exception to FSIA immunity when money damages are sought against a foreign state or its instrumentalities “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.” Id. § 1605(a)(5). Because the alleged “torts” committed by the SJRC and the SRC occurred outside the United States, we conclude that the noncommercial tort exception does not apply in this case. Accordingly, we affirm the judgment of the District Court in favor of the SJRC and the SRC.

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, claiming, inter alia, immunity from the jurisdiction of the courts of the United States as instrumentalities of a foreign state, pursuant to the FSIA. See28 U.S.C. §§ 1603(a), 1604 (providing that foreign states and their instrumentalities are “immune from the jurisdiction of the courts of the United States” unless certain specified exceptions apply).

Plaintiffs argued that the FSIA's noncommercial tort exception, 28 U.S.C. § 1605(a)(5), applied to the actions of the SJRC and the SRC, and thus, that the SJRC and the SRC lacked jurisdictional immunity.² The SJRC and the SRC replied, however, that the noncommercial tort exception to the immunity from suit conferred by the FSIA did not apply because: (1) plaintiffs failed to allege that the “entire tort” occurred in the United States; (2) the “discretionary function” exclusion to the FSIA's noncommercial tort exception applied, see id. § 1605(a)(5)(A); and (3) plaintiffs did not plead the necessary causation to satisfy 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,” 28 U.S.C. § 1605(a)(5)(A).

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. See538 F.3d at 89–90. In particular, we held that the FSIA's noncommercial tort exception cannot apply to claims based on alleged involvement in terrorist activities, because “claims based on terrorism must be brought under the Terrorism Exception, and not under any other FSIA exception.” Id. at 90.⁴ In light of our holding in In re Terrorist Attacks III, plaintiffs conceded that their claims against the SJRC and the SRC must be dismissed, and the District Court dismissed those claims on June 17, 2010. See In re Terrorist Attacks on September 11, 2001, 718 F.Supp.2d 456, 467 & n. 4 (S.D.N.Y.2010) (“ In re Terrorist Attacks IV”).

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...