United States: Second Circuit Affirms Right To Claim Against A Non-U.S. Sovereign Under The Noncommercial Tort Exception To The FSIA Despite The Inapplicability Of The FSIA’s "Terrorism" Exception
Doe v. Usama Bin Laden, Islamic Emirate of
Afghanistan, Dkt. No. 09-4958-cv (2d Cir. 2011), addresses
the issue whether civil tort claims against Afghanistan could be
asserted under the noncommercial tort exception to the Foreign
Sovereign Immunities Act. The issue is important to more than the
highly technical aspects of FSIA jurisprudence and implicates
statutory interpretation principles of important applicability to
international practice generally.
The case arises out of claims by the estate of a women who
perished in the terrorist attack of September 11, 2011. It is
agreed, and settled, that the "sole basis for obtaining
jurisdiction over a foreign state" in U.S. courts is the FSIA
(quoting Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428 (1989)). There exists in the FSIA a
terrorist exception, Section 1605A of the FSIA. That exception,
however, is not available against Afghanistan; "the State
Department has not designated Afghanastan as a state sponsor of
terrorism" (only four states are so designated: Cuba, Iran,
Sudan, and Syria).
In response to the plaintiff's allegations, and the District
Court's findings, that the another exception applied
— the noncommercial tort exception —
Afghanistan argued essentially that the terrorism exception
occupied the field and that claims that did not fall within that
exception could not be brought under another exception. The Second
Circuit affirmed the lower court's rejection of that
argument.
The Court of Appeals focused nearly exclusively on the text of
the statute. The noncommercial tort exception provides jurisdiction
in cases that are noncommercial, seek money damages, for personal
injury or death, or damage to or loss of property, that occurred in
the U.S., and that are caused by the tortious act of the non-U.S.
sovereign, unless the claim is based on a discretionary act or is
for malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.
The claims at issue met the requirements of the statute, found the
Court of Appeals.
Afghanistan's argument was essentially that the latter-added
terrorism exception silently repealed the noncommercial tort
exception as applicable to claims like this one. Partial repeal by
implication or "implicit repudiation" "runs against
all canons of interpretation", said the Second Circuit. The
terrorism exception expanded the reach of FSIA exceptions; it
didn't contract them.
Also of interest is the fact that, as the Court of Appeals
observed, the holding of this case "is inconsistent with that
reached by a different panel of our Court", in In re
Terrorist Attacks on September 11, 2011, 538 F.3d 71 (2d Cir.
2008). Despite the settled law that the Court of Appeals is bound
by such earlier decisions, here the Court parted company and
instead of being bound circulated this opinion to the members of
the earlier panel as well as to all active members of the Court,
stating merely "we have received no objection to our issuing
this opinion".
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