2d Circuit Dismisses 9/11 Lawsuit Against Saudi Arabia

Yesterday, in a 67 page opinion, the U.S. Court of Appeals for the Second Circuit issued its ruling In re Terrorist Attacks on September 11, 2001 affirming the 2006 ruling by the late U.S. District Judge Richard Casey, In re Terrorist Attacks on September 11, 2001, 349 F.Supp.2d 765 (S.D.N.Y. 2005), which dismissed a lawsuit brought by survivors of the 9/11 attacks against the nation of Saudi Arabia and four of its princes. The Second Circuit ruled that the defendants were protected from prosecution under the Foreign Sovereign Immunities Act (FSIA). The plaintiffs accused the princes of donating money to anti-American charities, which then funneled the funds to al-Qaeda. Judge Jacobs summarized the holding, as follows:

We conclude that the FSIA protects the appellees – most obviously, the Kingdom iself. 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.

For a legislative history of the Foreign Sovereign Immunities Act, see
Foreign Sovereign Immunities Act of 1976 with Amendments: a Legislative History of Pub. L. No. 94-583 compiled by William H. Manz, Call Number. KF1309.5 F67.