In re Terrorist Attacks on September 11, 2001 (Saudi Joint Relief Comm. , 714 F.3d 109 ( 2013 )

11-3294-cv(L), et al.
In re Terrorist Attacks on September 11, 2001 (Saudi Joint Relief Comm., et al.)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2012
(Argued On: December 4, 2012 Decided: April 16, 2013)
Docket Nos.
11-3294-cv(L), 11-3407-cv, 11-3490-cv, 11-3494-cv, 11-3495-cv, 11-3496-cv, 11-3500-cv, 11-3501-
cv, 11-3502-cv, 11-3503-cv, 11-3505-cv, 11-3506-cv, 11-3507-cv, 11-3508-cv, 11-3509-cv, 11-3510-
cv, 11-3511-cv, 12-949-cv, 12-1457-cv, 12-1458-cv, 12-1459-cv.
_______________________________________________________________
IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 (SAUDI JOINT RELIEF COMMITTEE, et al.)
JOHN PATRICK O’NEILL, JR., et al.,
Plaintiffs-Appellants,
v.
SAUDI JOINT RELIEF COMMITTEE,
SAUDI RED CRESCENT SOCIETY,
Defendants-Appellees.*
_______________________________________________________________
* The multiple appeals arising from the underlying multi-district litigation have been grouped under the case name “In re
Terrorist Attacks on September 11, 2001.” This opinion, however, only addresses the claims against two defendants—the
Saudi Joint Relief Committee (“SJRC”) and the Saudi Red Crescent Society (“SRC”)—dismissed by the District Court
pursuant to the Foreign Sovereign Immunities Act. Accordingly, the caption above refers only to these two defendants.
For the purpose of the disposition of the claims against these two defendants, the Clerk of Court is directed to amend
the caption to conform to the listing of the parties shown above.
On February 9, 2012, the parties entered into a stipulation withdrawing the appeals with regard to twenty-seven
defendants. Case No. 11-3294-cv(L), Dkt. No. 328. To the extent that the caption in this case includes any defendants
listed in that stipulation, the Clerk of Court is directed amend the caption accordingly.
Before: CABRANES, RAGGI, Circuit Judges, and RAKOFF, District Judge.**
These appeals involve claims by families and estates of the victims of the September 11,
2001 terrorist attacks, individuals injured by the attacks, and various commercial entities that
incurred damages and losses as a result of the attacks. Before us are claims under the Anti-
Terrorism Act, the Alien Tort Statute, the Torture Victim Protection Act, as well as various
common law tort claims against purported charities, financial institutions, and other individuals who
allegedly provided support and resources to Osama Bin Laden and al Qaeda. The United States
District Court for the Southern District of New York (George B. Daniels, Judge), granted judgment
in favor of seventy-six defendants, dismissing them on various grounds, including: (1) lack of
personal jurisdiction; (2) failure to state a claim upon which relief can be granted; and (3) immunity
from suit pursuant to the Foreign Sovereign Immunities Act (“FSIA”).
This opinion involves only two defendants, the Saudi Joint Relief Committee (“SJRC”) and
the Saudi Red Crescent Society (“SRC”), that were dismissed from this action pursuant to the FSIA.
That statute generally confers upon foreign states and their instrumentalities immunity from the
jurisdiction of the courts of the United States.
The question addressed in this opinion is whether the actions of the SJRC and SRC satisfy
the requirements of the noncommercial tort exception, which provides an exception to FSIA
immunity when money damages are sought against a foreign state or its instrumentalities “for
personal injury or death, or damage to or loss of property, occurring in the United States and caused
by the tortious act or omission of that foreign state or of any official or employee of that foreign
state while acting within the scope of his office or employment.” 28 U.S.C. § 1605(a)(5). Because
the alleged “torts” committed by the SJRC and the SRC occurred outside the United States, we
** The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by
designation.
2
conclude that the noncommercial tort exception does not apply in this case. Accordingly, we affirm
the judgment of the District Court in favor of these two defendants.
Affirmed.
SEAN P. CARTER (Stephen A. Cozen, Elliott R.
Feldman, Cozen O’Connor, Philadelphia, PA;
Ronald L. Motley, Robert T. Haefele, Motley
Rice, LLC, Mount Pleasant, SC; Carter G.
Phillips, Richard Klingler, Sidley Austin, LLP,
Washington, DC; Andrea Bierstein, Hanly
Conroy Bierstein Sheridan Fisher & Hayes,
LLP, New York, NY; Robert M. Kaplan,
Ferber Chan Essner & Coller, LLP, New
York, NY; James P. Kreindler, Justin T.
Green, Andrew J. Maloney, III, Kreindler &
Kreindler LLP, New York, NY; Jerry S.
Goldman, Anderson Kill & Olick, P.C., New
York, NY; Chris Leonardo, Adams Holcomb
LLP, Washington, DC, on the brief), Cozen
O’Connor, Philadelphia, PA, for Plaintiffs-
Appellants on Foreign Sovereign Immunities Act
Issues.
MICHAEL K. KELLOGG (Gregory G. Rapawy,
Brendan Crimmins, William J. Rinner, on the
brief), Kellogg, Huber, Hansen, Todd, Evans
& Figel, PLLC, Washington, DC, for Defendant-
Appellee Saudi Joint Relief Committee.
Lynne Bernabei, Alan R. Kabat, Bernabei & Wachtel,
PLLC, Washington, DC, for Defendant-Appellee
Saudi Red Crescent Society.1
JOSÉ A. CABRANES, Circuit Judge:
These appeals involve claims by families and estates of the victims of the September 11,
2001 terrorist attacks, individuals injured by the attacks, and various commercial entities that
incurred damages and losses as a result of the attacks (jointly, “plaintiffs”). Before us are claims
under the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333, the Alien Tort Statute (“ATS”), 28 U.S.C.
1 Due to the large number of attorneys involved in these appeals, we only list here the attorneys representing the SJRC
and the SRC, and the attorneys for the plaintiffs involved in the argument and briefing of the FSIA issues.
3
§ 1350, the Torture Victim Protection Act (“TVPA”), 28 U.S.C. § 1350 note, as well as various
common law tort claims against purported charities, financial institutions, and other individuals who
are alleged to have provided support and resources to Osama Bin Laden and al Qaeda. The United
States District Court for the Southern District of New York (George B. Daniels, Judge), granted
judgment in favor of seventy-six defendants, dismissing them on various grounds, including: (1) lack
of personal jurisdiction; (2) failure to state a claim upon which relief can be granted; and (3)
immunity from suit pursuant to the Foreign Sovereign Immunities Act (“FSIA”).
Due to the logistical challenges associated with these appeals, we address the various issues
they raise in separate decisions. This opinion involves only two defendants that were dismissed
from this action pursuant to the FSIA―the Saudi Joint Relief Committee (“SJRC”) and the Saudi
Red Crescent Society (“SRC”). In separate opinions filed today, we address the claims against the
defendants dismissed by the District Court for lack of personal jurisdiction, as well as the claims
against the defendants dismissed by the District Court for failure to state a claim upon which relief
can be granted.
Generally, the FSIA confers upon foreign states and their instrumentalities immunity from
the jurisdiction of the courts of the United States. See 28 U.S.C. § 1604. The question addressed in
this opinion is whether the actions of the SJRC and the SRC satisfy the requirements of the
noncommercial tort exception, which provides an exception to FSIA immunity when money
damages are sought against a foreign state or its instrumentalities “for personal injury or death, or
damage to or loss of property, occurring in the United States and caused by the tortious act or
omission of that foreign state or of any official or employee of that foreign state while acting within
the scope of his office or employment.” Id. § 1605(a)(5). Because the alleged “torts” committed by
the SJRC and the SRC occurred outside the United States, we conclude that the noncommercial tort
4
exception does not apply in this case. Accordingly, we affirm the judgment of the District Court in
favor of the SJRC and the SRC.
BACKGROUND
The SJRC and the SRC purportedly are humanitarian relief organizations established and
sponsored by the Kingdom of Saudi Arabia. In 2004 and 2005, after being named as defendants for
allegedly providing financial support to Osama Bin Laden and al Qaeda, the SJRC and the SRC filed
motions to dismiss the action, claiming, inter alia, immunity from the jurisdiction of the courts of the
United States as instrumentalities of a foreign state, pursuant to the FSIA. See 28 U.S.C. §§ 1603(a),
1604 (providing that foreign states and their instrumentalities are “immune from the jurisdiction of
the courts of the United States” unless certain specified exceptions apply).
Plaintiffs argued that the FSIA’s noncommercial tort exception, 28 U.S.C. § 1605(a)(5),
applied to the actions of the SJRC and the SRC, and thus, that the SJRC and the SRC lacked
jurisdictional immunity.2 The SJRC and the SRC replied, however, that the noncommercial tort
exception to the immunity from suit conferred by the FSIA did not apply because: (1) plaintiffs
failed to allege that the “entire tort” occurred in the United States; (2) the “discretionary function”
exclusion to the FSIA’s noncommercial tort exception applied, see id. § 1605(a)(5)(A); and (3)
plaintiffs did not plead the necessary causation to satisfy the FSIA’s noncommercial tort exception.
In 2008, while the claims against the SJRC and the SRC were pending before the District
Court, we affirmed the District Court’s dismissal of certain similarly-situated defendants in this
2
Section 1605(a)(5), the so-called noncommercial tort exception, provides:
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the
States in any case― . . . in which money damages are sought against a foreign state for personal injury
or death, or damage to or loss of property, occurring in the United States and caused by the tortious
act or omission of that foreign state or of any official or employee of that foreign state while acting
within the scope of his office or employment . . . .
28 U.S.C. § 1605(a)(5).
5
multi-district litigation―namely, the Kingdom of Saudi Arabia and the Saudi High Commission. See
In re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2d Cir. 2008) (“In re Terrorist Attacks III”).
The District Court had dismissed the claims against the Kingdom of Saudi Arabia and the Saudi
High Commission pursuant to the FSIA, see In re Terrorist Attacks on September 11, 2001, 392 F. Supp.
2d 539, 555 (S.D.N.Y. 2005) (“In re Terrorist Attacks II”); In re Terrorist Attacks on September 11, 2001,
349 F. Supp. 2d 765, 803-04 (S.D.N.Y. 2005) (“In re Terrorist Attacks I”), concluding that their
immunity from suit had been preserved by the “discretionary function” exclusion to the FSIA’s
noncommercial tort exception;3 the “discretionary function” exclusion provides that a foreign
sovereign retains immunity under the FSIA even if its act or omission is deemed to be tortious if the
act is “based upon the exercise or performance or the failure to exercise or perform a discretionary
function regardless of whether the discretion [is] abused,” 28 U.S.C. § 1605(a)(5)(A).
In In re Terrorist Attacks III, we affirmed the District Court’s dismissal of the claims asserted
against the Kingdom of Saudi Arabia and the Saudi High Commission, but on an alternative basis.
See 538 F.3d at 89-90. In particular, we held that the FSIA’s noncommercial tort exception cannot
apply to claims based on alleged involvement in terrorist activities, because “claims based on
terrorism must be brought under the Terrorism Exception, and not under any other FSIA
exception.” Id. at 90.4 In light of our holding in In re Terrorist Attacks III, plaintiffs conceded that
their claims against the SJRC and the SRC must be dismissed, and the District Court dismissed those
3 As noted above, see note 2, ante, the noncommercial tort exception sets forth certain conditions under which a foreign
state will not be immune from suit pursuant to the FSIA. See 28 U.S.C. § 1605(a)(5). However, “[t]he discretionary
function exception preserves the immunity of a sovereign nation when it would otherwise be abrogated by the
[noncommercial tort] exception ‘if two conditions are met: (1) the acts alleged to be negligent must be discretionary, in
that they involve an element of judgment or choice and are not compelled by statute or regulation, and (2) the judgment
or choice in question must be grounded in considerations of public policy or susceptible to policy analysis.’” USAA
Cas. Ins. Co. v. Permanent Mission of Republic of Namib., 681 F.3d 103, 111-12 (2d Cir. 2012) (quoting Coulthurst v. United
States, 214 F.3d 106, 109 (2d Cir. 2000)).
4 In reaching this conclusion, we noted that the defendants had “raise[d] three other challenges to the application of [the
FSIA’s] Torts Exception,” but we found it “unnecessary to reach th[o]se additional arguments” in light of our decision
to affirm the judgment of the District Court on an alternative basis. In re Terrorist Attacks III, 538 F.3d at 90 n.15.
6
claims on June 17, 2010. See In re Terrorist Attacks on September 11, 2001, 718 F. Supp. 2d 456, 467 &
n.4 (S.D.N.Y. 2010) (“In re Terrorist Attacks IV”).
In November 2011, however, we decided Doe v. Bin Laden, 663 F.3d 64 (2d Cir. 2011), which
revisited the issue of whether the FSIA’s noncommercial tort exception and terrorism exception are
mutually exclusive. Through use of this Court’s “mini-en banc” procedure, see Shipping Corp. of India v.
Jaldhi Overseas Pte Ltd., 585 F.3d 58, 67 & n.9 (2d Cir. 2009) (describing the “mini-en banc” procedure),
we partially overruled our judgment in In re Terrorist Attacks III, holding that “the terrorism
exception, rather than limiting the jurisdiction conferred by the noncommercial tort exception,
provides an additional basis for jurisdiction,” Doe, 663 F.3d at 70.
Following our decision in Doe, plaintiffs now argue (1) that the District Court erred by
dismissing the SJRC and the SRC for want of jurisdiction pursuant to the FSIA, and (2) that we
should vacate the District Court’s judgment with regard to the SJRC and the SRC and remand that
portion of this action to the District Court for further proceedings, including a regular course of
discovery. The SJRC and the SRC do not dispute that Doe overruled the stated basis for the District
Court’s decision to dismiss them from this lawsuit or that the District Court’s judgment dismissing
the claims against them must be modified or vacated insofar as it relies on the In re Terrorist Attacks
III holding. They argue, however, that the judgment of the District Court can and should be
affirmed because FSIA’s noncommercial tort exception does not apply to their actions for the three
reasons initially outlined in their 2004 and 2005 motions to dismiss. See Dist. Ct. Dkt. Nos. 631-1,
1175 (arguing that the FSIA’s noncommercial tort exception does not apply because: (1) plaintiffs
fail to allege that the “entire tort” occurred in the United States; (2) the “discretionary function”
exclusion to the FSIA’s noncommercial tort exception applies; and (3) plaintiffs do not plead the
necessary causation).
7
DISCUSSION
A. Standard of Review
“The standard of review applicable to district court decisions regarding subject matter
jurisdiction under the FSIA is clear error for factual findings and de novo for legal conclusions,” U.S.
Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 150-51 (2d Cir. 2001) (citing Filetech S.A.
v. France Telecom S.A., 157 F.3d 922, 930 (2d Cir. 1998)), “accepting all material facts alleged in the
complaint as true and drawing all reasonable inferences in the plaintiff[s’] favor,” Liranzo v. United
States, 690 F.3d 78, 84 (2d Cir. 2012).
As noted, there is no dispute that the District Court’s stated reason for dismissing the claims
against the SJRC and the SRC is no longer valid in light of Doe. We therefore consider whether any
of the three alternate arguments raised by the SJRC and the SRC justify affirming the judgment of
the District Court. See, e.g., Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 405 (2d Cir. 2006) (“[W]e
are free to affirm a decision on any grounds supported in the record, even if it is not one on which
the trial court relied.” (citing McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000))); see also Leecan v.
Lopes, 893 F.2d 1434, 1439 (2d Cir. 1990) (same).
B. Jurisdiction
“It is well settled that the only source of subject matter jurisdiction over a foreign sovereign
[or its instrumentalities] in the courts of the United States is [the FSIA].” Garb v. Republic of Poland,
440 F.3d 579, 581 (2d Cir. 2006). The parties do not dispute that the SJRC and the SRC qualify as
instrumentalities of a foreign sovereign within the meaning of the FSIA. See 28 U.S.C. § 1603(b).5
5 In full, 28 U.S.C. § 1603(b) provides:
(b) An “agency or instrumentality of a foreign state” means any entity―
(1) which is a separate legal person, corporate or otherwise, and
8
“Once the defendant presents a prima facie case that it is a foreign sovereign [or an
instrumentality of a foreign sovereign], the plaintiff has the burden of going forward with evidence
showing that, under exceptions to the FSIA, immunity should not be granted, although the ultimate
burden of persuasion remains with the alleged foreign sovereign.” Cargill Int’l S.A. v. M/T Pavel
Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993) (citation omitted). The FSIA thus establishes a general
rule of immunity from the jurisdiction of the courts in the United States, except as provided by
certain statutory exceptions.6 See 28 U.S.C. § 1604. With respect to the claims against the SJRC and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of
whose shares or other ownership interest is owned by a foreign state or political subdivision
thereof, and
(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and
(e) of this title, nor created under the laws of any third country.
6 These exceptions to the FSIA’s jurisdictional immunity from suit are set out in 28 U.S.C. § 1605(a), which provides:
(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the
States in any case―
(1) in which the foreign state has waived its immunity either explicitly or by implication,
notwithstanding any withdrawal of the waiver which the foreign state may purport to effect
except in accordance with the terms of the waiver;
(2) in which the action is based upon a commercial activity carried on in the United States by
the foreign state; or upon an act performed in the United States in connection with a
commercial activity of the foreign state elsewhere; or upon an act outside the territory of the
United States in connection with a commercial activity of the foreign state elsewhere and
that act causes a direct effect in the United States;
(3) in which rights in property taken in violation of international law are in issue and that
property or any property exchanged for such property is present in the United States in
connection with a commercial activity carried on in the United States by the foreign state; or
that property or any property exchanged for such property is owned or operated by an
agency or instrumentality of the foreign state and that agency or instrumentality is engaged in
a commercial activity in the United States;
(4) in which rights in property in the United States acquired by succession or gift or rights in
immovable property situated in the United States are in issue;
(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought
against a foreign state for personal injury or death, or damage to or loss of property,
occurring in the United States and caused by the tortious act or omission of that foreign
state or of any official or employee of that foreign state while acting within the scope of his
office or employment; except this paragraph shall not apply to—
9
the SRC, the only relevant exception is the noncommercial tort exception.7 See id. § 1605(a)(5); see
also note 3, ante.
C. The Noncommercial Tort Exception to the FSIA and the “Entire Tort” Rule
As noted, the FSIA’s noncommercial tort exception provides:
A foreign state shall not be immune from the jurisdiction of courts of the
United States or of the States in any case― . . . in which money damages are
sought against a foreign state for personal injury or death, or damage to or
(A) any claim based upon the exercise or performance or the failure to exercise or
perform a discretionary function regardless of whether the discretion be abused, or
(B) any claim arising out of malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights; or
(6) in which the action is brought, either to enforce an agreement made by the foreign state
with or for the benefit of a private party to submit to arbitration all or any differences which
have arisen or which may arise between the parties with respect to a defined legal
relationship, whether contractual or not, concerning a subject matter capable of settlement
by arbitration under the laws of the United States, or to confirm an award made pursuant to
such an agreement to arbitrate, if (A) the arbitration takes place or is intended to take place
in the United States, (B) the agreement or award is or may be governed by a treaty or other
international agreement in force for the United States calling for the recognition and
enforcement of arbitral awards, (C) the underlying claim, save for the agreement to arbitrate,
could have been brought in a United States court under this section or section 1607, or (D)
paragraph (1) of this subsection is otherwise applicable.
7 The FSIA’s terrorism exception, see 28 U.S.C. § 1605A(a), does not apply to the SJRC or the SRC because that
exception is only available against a nation that has been designated by the United States government as a state sponsor
of terrorism at the time of, or due to, a terrorist act. Section 1605A(a) provides, in relevant part:
(a) In general.―
(1) No immunity.―A foreign state shall not be immune from the jurisdiction of courts of
the United States or of the States in any case not otherwise covered by this chapter in which
money damages are sought against a foreign state for personal injury or death that was
caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the
provision of material support or resources for such an act if such act or provision of material
support or resources is engaged in by an official, employee, or agent of such foreign state
while acting within the scope of his or her office, employment, or agency.
(2) Claim heard.―The court shall hear a claim under this section if―
(A)(i)(I) the foreign state was designated as a state sponsor of terrorism at the time
the act described in paragraph (1) occurred, or was so designated as a result of such
act, and, subject to subclause (II), either remains so designated when the claim is
filed under this section or was so designated within the 6-month period before the
claim is filed under this section . . . .
Currently, the Secretary of State has designated only four states as state sponsors of terrorism: Cuba, Iran, Sudan, and
Syria. United States Department of State, State Sponsors of Terrorism, http://www.state.gov/j/ct/list/c14151.htm (last
visited Mar. 13, 2013).
10
loss of property, occurring in the United States and caused by the tortious act
or omission of that foreign state or of any official or employee of that
foreign state while acting within the scope of his office or employment.
28 U.S.C. § 1605(a)(5). For this exception to apply, however, the entire tort must be committed in
the United States. This so-called “entire tort” rule was first articulated by the Supreme Court in
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989). In that case, the Supreme
Court considered whether courts in the United States had jurisdiction over a suit brought by two
Liberian corporations against the Argentine Republic to recover damages stemming from a tort
allegedly committed by Argentina’s armed forces on the high seas in violation of international law.
Id. at 431. The Court held that the action was barred by the FSIA, holding that the noncommercial
tort exception “covers only torts occurring within the territorial jurisdiction of the United States.”
Id. at 441.
After Amerada Hess Shipping Corporation was decided, we described and explained the “entire
tort” rule in Cabiri v. Government of Ghana, 165 F.3d 193 (2d Cir. 1999), noting that “[a]lthough [the
words of the statute are] cast in terms that may be read to require that only the injury rather than the
tortious acts occur in the United States, the Supreme Court has held that this exception ‘covers only
torts occurring within the territorial jurisdiction of the United States.’” Id. at 200 n.3 (quoting
Amerada Hess Shipping Corp., 488 U.S. at 441). At least two of our sister circuits have applied the
“entire tort” rule as well. See O’Bryan v. Holy See, 556 F.3d 361, 382 (6th Cir. 2009) (“We join the
Second and D.C. Circuits in concluding that in order to apply the tortious act exception, the ‘entire
tort’ must occur in the United States. This position finds support in the Supreme Court’s decision
in Amerada Hess Shipping . . . .”); Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1525
11
(D.C. Cir. 1984) (“Even if the [alleged tort] had the effect of retroactively rendering the prior acts on
United States soil tortious, at the very least the entire tort would not have occurred here . . . .”).8
Here, plaintiffs do not claim that the “torts” allegedly committed by the SJRC and the SRC
occurred in the United States. They assert instead that the injuries and damage caused by the
September 11, 2001 attacks in the United States were related to, and a result of, the actions taken by
the SJRC and the SRC abroad―namely, allegedly contributing financial and other resources to
support Osama Bin Laden and al Qaeda.9 Plaintiffs’ FSIA Reply Br. 9. But such allegations are
insufficient to satisfy the requirements of the FSIA’s noncommercial tort exception, and thus,
cannot strip the SJRC and the SRC of their jurisdictional immunity from suit.
Even though plaintiffs assert that “[t]he September 11th Attack was a direct, intended and
foreseeable product of participation [by the SJRC and the SRC] in al Qaida’s jihadist campaign,”
Joint App’x 3809-10, they do not allege that the SJRC or the SRC participated in the September 11,
2001 attacks or committed any tortious act in the United States. Nor do plaintiffs allege that any
employees of the SJRC and SRC―or anyone controlled by these entities―committed a tortious act
in the United States. Rather, they argue that the SJRC and the SRC can be held liable simply
because “personal injury, death or property damage occur[red] in the United States.” Plaintiffs’
FSIA Reply Br. 3. But such allegations are not enough; plaintiffs do not allege that the SJRC or the
8 The FSIA’s legislative history also supports the proposition that the noncommercial tort exception should apply to
relatively few situations. Indeed, one of our sister circuits has noted that the primary purpose of this exception to the
FSIA “was to enable officials and employees of foreign sovereigns to be held liable for the traffic accidents which they
cause in this country, whether or not in the scope of their official business.” Asociacion de Reclamantes, 735 F.2d at 1525
(citing H.R. Rep. No. 94-1487, at 20-21, reprinted in 1976 U.S.C.C.A.N. 6604, 6619-20).
9 Specifically, plaintiffs’ allegations with regard to the SJRC are that it “diverted more than $74 million to al Qaida
members and loyalists,” Joint App’x 3793; “served as a cover for several al Qaida operatives,” id.; and “has been
connected to Osama bin Laden and two of his top operatives,” id. at 851. In one of their supplemental RICO
statements, plaintiffs also assert that the SJRC’s “involvement with terrorist attacks in Albania, Kosovo, Egypt, Tanzania
and Kenya” has been discussed publicly. Id. at 2484. With regard to the SRC, plaintiffs allege that it was a purported
charitable organization that provided support for the mujahideen in Afghanistan, id. at 3808; that it “redirected its efforts
towards the fulfillment of the objectives of . . . al Qaida” following the withdrawal of Soviet troops from Afghanistan, id.
at 3808; and that SRC employees “have repeatedly been implicated in al Qaida attacks and plots,” id. at 3809.
12
SRC committed a single tortious act in the United States. Put another way, plaintiffs attempt to hold
the SJRC and the SRC liable for providing funding and other aid to entities that purportedly
supported al Qaeda, but the actions allegedly taken by the SJRC and the SRC in this regard took
place completely outside the United States. As all of the tortious conduct allegedly committed by the
SJRC and the SRC occurred abroad,10 plaintiffs’ allegations cannot satisfy the noncommercial tort
exception to the immunity conferred by the FSIA, and therefore, courts in the United States lack
jurisdiction to consider these claims against the SJRC and the SRC.11
Plaintiffs argue, alternatively, that even if we conclude that the FSIA bars this action against
the SJRC and the SRC, we nevertheless should remand this action so that the District Court can
consider these arguments in the first instance. See Plaintiffs’ FSIA Reply Br. 4-5 (citing Farricielli v.
Holbrook, 215 F.3d 241, 246 (2d Cir. 2000)). We disagree.
First, as noted above, it is well established that we can affirm the dismissal of a complaint on
any basis supported by the record. See, e.g., Leecan, 893 F.2d at 1439. Second, a central purpose of
the FSIA is to “enable a foreign government to obtain an early dismissal when the substance of the
claim against it does not support jurisdiction.” Robinson v. Gov’t of Malay., 269 F.3d 133, 146 (2d Cir.
2001). As no relevant facts are in dispute, remanding the matter to the District Court at this
juncture of a prolonged litigation would simply delay the inevitable and keep the SJRC and the SRC
in this lawsuit longer than appropriate. Third, we recently concluded that a district court’s judgment
should be affirmed on an “alternative ground” when a plaintiff “fail[s] to make the threshold
10 Although the September 11, 2001 attacks constitute a “tort,” the SJRC and the SRC are not alleged to have
participated in that “tort.” Instead, the “torts” allegedly committed by the SJRC and the SRC only involve giving money
and aid to purported charities that supported al Qaeda. See note 9, ante. The September 11, 2001 attacks thus are
distinct and separate from the “torts” allegedly committed by the SJRC and the SRC.
11 Because we conclude that the noncommercial tort exception does not apply in this context due to plaintiffs’ failure to
satisfy the “entire tort” rule, we find it unnecessary to consider the “discretionary function” exclusion and causation
arguments raised by the SJRC and the SRC. For background on the “discretionary function” exclusion and causation
questions, see generally USAA Cas. Ins. Co., 681 F.3d at 111-12 (discussing “discretionary function” exclusion); Robinson
v. Gov’t of Malay., 269 F.3d 133, 144-46 (2d Cir. 2001) (discussing causation).
13
showing necessary to invoke” an exception to the FSIA. Mortimer Off Shore Servs., Ltd. v. Fed. Republic
of Ger., 615 F.3d 97, 113 (2d Cir. 2010). As plaintiffs have failed to make a threshold showing that
an exception to the FSIA is applicable to the SJRC and the SRC, we affirm the judgment of the
District Court on this alternative basis.
CONCLUSION
To summarize:
(1) The District Court’s judgment, insofar as it dismissed claims against the SJRC and the
SRC pursuant to our decision in In re Terrorist Attacks on September 11, 2001, 538 F.3d 71,
89-90 (2d Cir. 2008) (holding that the FSIA’s noncommercial tort exception could not
apply to claims based on alleged involvement in terrorist activities), was error in light of
our supervening decision in Doe v. Bin Laden, 663 F.3d 63, 70 (2d Cir. 2011) (holding that
the FSIA’s terrorism exception does not limit the jurisdiction conferred by the
noncommercial tort exception, but rather, provides an additional basis for jurisdiction).
(2) Despite the fact that the basis for the District Court’s dismissal of the SJRC and the SRC
is no longer good law, we may affirm the judgment of the District Court on any ground
that finds support in the record, and we conclude that the record establishes that the
alleged “torts” committed by the SJRC and the SRC occurred outside the United States.
(3) Because the alleged “torts” committed by the SJRC and the SRC occurred outside the
United States, the noncommercial tort exception to the immunity from suit conferred by
the Foreign Sovereign Immunities Act does not apply in these circumstances pursuant to
the “entire tort” rule, and thus, we lack jurisdiction to consider plaintiffs’ claims against
the SJRC and the SRC.
14
For these reasons, we AFFIRM the judgment of the District Court insofar as it dismissed
plaintiffs’ claims against the SJRC and the SRC pursuant to the Foreign Sovereign Immunities Act
for want of jurisdiction.
15