Second Circuit Affirms District Of Columbia Refusal To Dismiss Case Against Afghanistan Under Noncommercial Tort Exception To FSIA; Case Remanded To S.D.N.Y. For Jurisdictional Discovery

Doe v. Bin Laden, Islamic Emirate of Afganistan, et al., No. 09-4958-cv (2d Cir. Nov. 2011) (per curiam), affirmed a District Court in the District of Columbia's decision to permit a case to proceed against Afghanistan, rejecting the argument that Afganistan was immune from suit under the Foreign Sovereign Immunities Act. The claims arose out of the September 11, 2001 terrorist attacks and asserted conspiracy and wrongful death counts against Afghanistan.

The issues of international practice raised by or discussed in the case include:

First, the case began in the District of Columbia and was transferred to the Second Circuit Court of Appeals by the District of Columbia Court of Appeals under 28 U.S.C. Sec. 1407 (the multi-district litigation transfer provision).

Second, there were two possible statutory bases to overcome the immunity that Afghanistan asserted: the terrorist exception, Section 1605A, and the noncommercial tort exception, Section 1605(a)(5). The parties and the Court agreed that the terrorist exception was not available "because the State Department has not designated Afghanistan as a state sponsor of terrorism". (The only four nation states that are so designated are Cuba, Iran, Sudan, and Syria.) Afghanistan asserted that with the passage of the terrorist exception, the only basis to assert the claims was under that exception. The Court of Appeals rejected the argument, finding that the terrorist exception was added as an addition basis for securing federal court jurisdiction, not as a limitation on previously available remedies. Said the Court:

All this is to say, 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 application of the noncommercial tort exception.

The Court of Appeals rejected the argument both on the basis of the plain text of the statute, its legislative history, and on the "familiar canon of...