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Sovereign immunity.


In a lawsuit stemming from the terrorist attacks on September 11, 2001, the nation of Afghanistan's motion to dismiss was denied by the district court. Plaintiff John Doe filed a suit as personal representative and executor of his wife's estate, who perished in the September 11th attacks, with claims of conspiracy and wrongful death. Doe names Afghanistan as the defendant and asserts subject matter jurisdiction under the Foreign Sovereign Immunities Act's ("FSIA") noncommercial tort exception. Though Afghanistan did not initially respond and a default judgment was entered against it, the nation appeared to vacate the judgment and dismiss the lawsuit, asserting that the claims could only be brought under the FSIA terrorism exception. However, the exception does not apply to Afghanistan because the State Department has not designated the nation as a state sponsor or terrorism; therefore, the case should be not dismissed. The district court denied Afghanistan's motion and the nation has appealed.

The U.S. Court of Appeals for the Second Circuit affirms the district court's denial of the motion to dismiss. To analyze this matter, the Court uses a statutory interpretation approach to determine whether the noncommercial tort exception applies to this case and cases of this nature. First, the Court looks to the plain text of the FSIA. "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. [section] 1605(a)(5)." [Slip op. 4-5]

The Court determines that the first five requirements were present. Further Court explains that the harms alleged by Doe were all torts attributable to the terrorist attacks. "Additionally, the complaint alleged nondiscretionary acts by employees of the foreign state within the scope of their employment." [Slip op. 5] Therefore, the Court holds that the claims fit within the noncommercial tort exception.

Specifically with regard to Afghanistan's argument that the noncommercial tort exception should not apply simply because terrorism exception also applies, the Court further examines the text of the FSIA. The Court finds that Afghanistan is calling for a narrow reading of the FSIA that would limit the jurisdiction of the United States.

The text of the FSIA states that it only applies to injuries within the United States; thereby, excluding any tort claims occurring abroad. The Court notes that when the terrorism exception was added to the FSIA, "[a] bombing abroad killing U.S. nationals is not only a paradigmatic example of terrorism, it is the precisem--and only--example Congress cited when it originally added the terrorism exception to the FSIA." [Slip op. 7]

"Afghanistan's proposed narrow reading of the noncommercial tort exception would not so much be a reading of the statue as it would be a decision that the terrorism exception amounts to a partial repeal by implication of the noncommercial tort exception. Prior to the terrorism exception's enactment, several courts had allowed suits against foreign governments under the noncommercial tort exception for tortuous--and arguably 'terrorist'-- acts occurring in the United States." [Slip op. 8]

If Afghanistan's reading were correct, then the enactment of the terrorism exception would not have expanded the law, but instead would have repudiated the application of the already existing noncommercial tort exception.

Next, the Court examines the legislative history of the Act. "The House Committee Report explained that the provision was 'necessary to clarify and expand the circumstances in which an American ... can bring suit in U.S. courts against a foreign government under the FSIA.' H.R. Rep. No. 103-702, at 3 (1994) (emphasis added); accord H.R. Rep. No. 102-900, at 3-4 (1992)." [Slip op. 10]

Further, "[t]he noncommercial tort exception excludes from its scope 'any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.' 28 U.S.C. [section] 1605(a)(5)(B). Noticeably absent from this list are the torts listed in the terrorism exception-'an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.' 28 U.S.C. [section] 1605A(a) (1)." [Slip op. 10]

By examining the text, legislative history, and purpose of the Act, the Court determines that Afghanistan's argument was incorrect. Instead, the Act allows for an overlap in application of the exceptions. "But, Congress has expressly provided in the statute for how to determine which exception dominates. It did so by limiting the terrorism exception to 'any case not otherwise covered by [the FSIA].' 28 U.S.C. [section] 1605A(a)(1). In other words, Congress expressly stated that the terrorism exception should only apply when the preexisting exceptions failed to cover a case." [Slip op. 11]

Lastly, though the Court holds that the terrorism exception of the FSIA did not limit the application of the noncommercial tort exception, it was made clear that there was no ruling made regarding the sufficiency of the pleadings. Therefore, the case was remanded to the district court to determine such issues.

CITATION: Doe v. Usama Bin Laden, 663 F.3d 64 (2d Cir. 2011).
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Publication:International Law Update
Geographic Code:1USA
Date:Jul 1, 2011
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