Sovereign Immunity

• Pages: 137-138

Page 137

Victims who suffered personal injuries and fi nancial losses as a result of the September 11, 2001 terrorist attacks in the U.S. (Plaintiff s) fi led suit in a New York federal court against numerous Defendants, alleging that the Defendants played a critical role in the attacks by supporting charities that ultimately funded al Qaeda.

The district court entered judgment on January 10, 2006, dismissing the claims against twelve of the Defendants. Plaintiffs appealed the judgment as to seven of the Defendants to the Second Circuit, challenging the District Court's interpretation of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330, 1602-1611 (FSIA). The seven Defendants are the Kingdom of Saudi Arabia (Saudi Arabia), four Saudi princes, a Saudi banker and the Saudi High Commission for Relief to Bosnia and Herzegovina (SHC). The Circuit Court affirms thePage 138 lower court's ruling that the FSIA immunized them from federal judicial jurisdiction.

In general, in a motion to dismiss for lack of subject matter jurisdiction under the FSIA, the Defendant must present a prima facie case that it is a foreign sovereign. Then the Plaintiff has the burden of showing that there is no immunity under one or more FSIA exceptions. The Court agrees with the district court that there is no subject matter jurisdiction over the claims against the Kingdom, the Four Princes in their official capacities, and the SHC. The Court also affirms the district court's dismissal of the claims against the Four Princes (in their personal capacities) and the Saudi banker for lack of personal jurisdiction.

As for individual officials of a foreign government, the Second Circuit has not yet decided whether the FSIA protects them when they are acting in their official capacity. The Court, however, now decides to "... join our sister circuits in holding that an individual official of a foreign state acting in his official capacity is the 'agency or instrumentality' of the state, and is thereby protected by the FSIA." [Slip Op. 22]

In the Court's view, a claim against an agency of state power, including a state officer acting in his official capacity, can actually be equivalent to a claim against the state itself. The law recognizes that "the immunity of a principal does not amount to much without the extension of that immunity to its agents." [Slip Op. 31]

Addressing the question of SHC's status as an "agency or instrumentality" of Saudi Arabia, the Court...