In re Terrorist Attacks on September 11, 2001

Yesterday, the U.S. Court of Appeals for the Second Circuit decided In re Terrorist Attacks on September 11, 2001 (opinion here; New York Law Journal story here). The panel affirmed the district court's decision dismissing claims against seven Saudi Arabian defendants. The plaintiffs alleged that the defendants provided support to al Qaeda for the September 11th attacks. Judge Jacobs, writing for the panel (which included Judge Cabranes and District Court Judge Vitaliano, sitting by designation), summarized the holding, as follows:

We conclude that the [Foreign Sovereign Immunities Act] protects the appellees - most obviously, the Kingdom itself. First, we hold that the FSIA applies to individual officials of foreign governments in their official capacities, and therefore to the Four Princes. Second, we affirm the district court’s conclusion that the [Saudi High Commission for Relief to Bosnia and Herzegovina] is an “agency or instrumentality” of the Kingdom, to which the FSIA likewise applies. Further, we conclude that none of the FSIA’s exceptions applies. The plaintiffs’ claims do not come within the statutory exception for state-sponsored terrorist acts, 28 U.S.C. § 1605A (“Terrorism Exception”), because the Kingdom has not been designated a state sponsor of terrorism by the United States. As to the exception for personal injury or death caused by a foreign sovereign’s tortious act, id. § 1605 (a)(5) (“Torts Exception”), we decline to characterize plaintiffs’ claims - expressly predicated on a state-sponsored terrorist act - as sounding in tort. Nor do the plaintiffs’ claims come within the statutory exception for a foreign sovereign’s commercial activity, id. § 1605(a)(2) (“Commercial Activities Exception”), because the defendants’ specific alleged conduct - supporting Muslim charities that promote and underwrite terrorism - is not conduct in trade, traffic or commerce. Accordingly, we agree with the district court that it lacked subject matter jurisdiction over the claims against the Kingdom, the Four Princes in their official capacities, and the SHC. We likewise affirm the district court’s dismissal of the claims against the Four Princes (in their personal capacities) and Mohamed for want of personal jurisdiction, and the denial of the plaintiffs’ motions for jurisdictional discovery.