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Afghanistan's argument was essentially that the latter-added terrorism exception silently repealed the noncommercial tort exception as applicable to claims like this one.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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