Sovereign immunity

• Pages: 88-89

88 Volume 17, October–December 2011 international law update

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

SOVEREIGN IMMUNITY

S C  A’

      

    

F S I A,  

       

In a lawsuit stemming from the terrorist attacks

on September 11, 2001, the nation of Afghanistan’s

motion to dismiss was denied by the district

court. Plainti John Doe led a suit as personal

representative and executor of his wife’s estate, who

perished in the September 11th attacks, with claims

of conspiracy and wrongful death. Doe names

Afghanistan as the defendant and asserts subject

matter jurisdiction under the Foreign Sovereign

Immunities Act’s (“FSIA”) noncommercial tort

exception. ough Afghanistan did not initially

respond and a default judgment was entered against

it, the nation appeared to vacate the judgment

and dismiss the lawsuit, asserting that the claims

could only be brought under the FSIA terrorism

exception. However, the exception does not apply

to Afghanistan because the State Department

has not designated the nation as a state sponsor

or terrorism; therefore, the case should be not

dismissed. e district court denied Afghanistan’s

motion and the nation has appealed.

e U.S. Court of Appeals for the Second

Circuit arms the district court’s denial of the

motion to dismiss. To analyze this matter, the

Court uses a statutory interpretation approach

to determine whether the noncommercial tort

exception applies to this case and cases of this nature.

First, the Court looks to the plain text of the FSIA.

“e text of the noncommercial tort exception of

the FSIA provides jurisdiction for cases that (1) are

noncommercial, (2) seek ‘money damages,’ (3) for

‘personal injury or death, or damage to or loss of

property,’ (4) that ‘occur[ed] in the United States,’

and (5) that was ‘caused by the tortious act,’ (6)

‘of [a defendant] foreign state or [its] employee . .

. acting within the scope of his . . . employment,’

unless (7) the claim is based on a discretionary

act or (8) it is for ‘malicious prosecution, abuse of

process, libel, slander, misrepresentation, deceit,

or interference with contract rights.’ 28 U.S.C. §

1605(a)(5).” [Slip op. 4-5]

e Court determines that the rst ve

requirements were present. Further Court explains

that the harms alleged by Doe were all torts

attributable to the terrorist attacks. “Additionally,

the complaint alleged nondiscretionary acts by

employees of the foreign state within the scope of

their employment.” [Slip op. 5] erefore, the Court

holds that the claims t within the noncommercial

tort exception.

Specically with regard to Afghanistan’s

argument that the noncommercial tort exception

should not apply simply because terrorism exception

also applies, the Court further examines the text

of the FSIA. e Court nds that Afghanistan is

calling for a narrow reading of the FSIA that would

limit the jurisdiction of the United States.

e text of the FSIA states that it only applies to

injuries within the United States; thereby, excluding

any tort claims occurring abroad. e Court notes

that when the terrorism exception was added to the

FSIA, “[a] bombing abroad killing U.S. nationals is

not only a paradigmatic example of terrorism, it is

the precisem—and only—example Congress cited

when it originally added the terrorism exception to

the FSIA.” [Slip op. 7]

“Afghanistan’s proposed narrow reading of

the noncommercial tort exception would not so

much be a reading of the statue as it would be a

decision that the terrorism exception amounts to a

partial repeal by implication of the noncommercial

tort exception. Prior to the terrorism exception’s

enactment, several courts had allowed suits against

foreign governments under the noncommercial tort

exception for tortuous—and arguably ‘terrorist’—

acts occurring in the United States.” [Slip op. 8]

If Afghanistan’s reading were correct, then the

enactment of the terrorism exception would not

have expanded the law, but instead would have

repudiated the application of the already existing

noncommercial tort exception.

Next, the Court examines the legislative

history of the Act. “e House Committee Report

explained that the provision was ‘necessary to

clarify and expand the circumstances in which an