On November 7th, the U.S. Court of Appeals for the Second Circuit in New York City decided an important case on whether or not the Islamic State of Afghanistan was entitled to sovereign immunity in a lawsuit for money damages by the estate of a woman who was killed in the terrorist attacks on the World Trade Center on September 11, 2011. The court concluded that Afghanistan was not entitled to such immunity without discovery and determination by the trial court.[1]
The question of sovereign immunity of foreign states in U.S. courts is governed by the Foreign Sovereign Immunities Act of 1976 as amended. The general rule is that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States.”[2] There, however, are statutory exceptions to such immunity.[3]
The issue in this case was whether the noncommercial tort exception applied at the initial stages of the lawsuit, and the court said that it did, but that the trial court on remand would have to decide after limited discovery whether all of the conditions for the exception were established by the evidence.
This exception applies to cases that (i) are noncommercial, (ii) seek “money damages,” (iii) for “personal injury or death, or damages to or loss of property,” (iv) that occurred in the U.S. and (v) and that were “caused by the tortious act” (vi) of a defendant “foreign state or [its] employee . . . acting within the scope of his . . . employment” unless (vii) the claims were based on a discretionary act. According to the Second Circuit, there was no question that the complaint alleged that these requirements for this exception were present.[4]
The court then rejected Afghanistan’s argument that the noncommercial tort exception was further limited by the terrorism exception to sovereign immunity and that such an interpretation called for dismissal of the case because Afghanistan had not been designated by the U.S. as a state sponsor of terrorism as required by that exception.[5]
As the court acknowledged, this last ruling on the terrorism exception overruled a prior decision of the Second Circuit.[6] Ordinarily this would be forbidden because a three-judge panel of the Second Circuit (or any other circuit court of appeals) is “bound by the decisions of prior panels” [of the same multi-judge court] until such time as they are overruled by an en banc panel [all the judges] of our Court or by the Supreme Court.”[7] The three-judge panel panel in the Bin Laden case, however, circulated its opinion to the members of the other panel in the 9-11 case and all 12 active Second Circuit judges and received no objection to the Bin Laden opinion; this procedure, said the Bin Laden panel, was a so called “mini-en banc” procedure.[8]
[1] Opinion, Doe v. Bin Laden, No. 09-4958-cv (2d Cir. Nov. 7, 2011); Lichtblau, Prospects Improve for Sept. 11 Suits Against Nations, N.Y. Times (Nov. 18, 2011).
[2] 28 U.S.C. §1604.
[3] 28 U.S.C. §§1604-1607.
[4] 28 U.S.C. §1605(a)(5); Opinion at 4-5. There is another exclusion from this exception for certain types of claims that were not present in this case. (Opinion at 5.) See generally David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, at 1001-14 (4th ed. 2009).
[5] 28 U.S.C. §1605(a)(7); Opinion at 5-12.
[6] In re Terrorist Attacks on September 11, 2011, 538 F.3d 71, 89 (2d Cir. 2008)(affirmance of dismissal on ground of sovereign immunity of tort case for money damages against Saudi Arabia for alleged financial and logistical support of the 9/11 attacks).
[7] Shipping Corp. of India v. Jaldhi Overseas Pte, 585 F.3d 58, 67 & n.9 (2d Cir. 2009).
[8] Opinion at 12 n.10, Doe v. Bin Laden, surpa; cf. Fed. R. App. Pro. 35(a)(1)(majority of active circuit judges may order en banc consideration of a case “to secure or maintain uniformity of the court’s decisions”).
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