Second Circuit Affirms Right To Claim Against A Non-U.S. Sovereign Under The Noncommercial Tort Exception To The FSIA Despite The Inapplicability Of The FSIA's 'Terrorism' Exception

Doe v. Usama Bin Laden, Islamic Emirate of Afghanistan, Dkt. No. 09-4958-cv (2d Cir. 2011), addresses the issue whether civil tort claims against Afghanistan could be asserted under the noncommercial tort exception to the Foreign Sovereign Immunities Act. The issue is important to more than the highly technical aspects of FSIA jurisprudence and implicates statutory interpretation principles of important applicability to international practice generally.

The case arises out of claims by the estate of a women who perished in the terrorist attack of September 11, 2011. It is agreed, and settled, that the "sole basis for obtaining jurisdiction over a foreign state" in U.S. courts is the FSIA (quoting Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989)). There exists in the FSIA a terrorist exception, Section 1605A of the FSIA. That exception, however, is not available against Afghanistan; "the State Department has not designated Afghanastan as a state sponsor of terrorism" (only four states are so designated: Cuba, Iran, Sudan, and Syria).

In response to the plaintiff's allegations, and the District Court's findings, that the another exception applied — the noncommercial tort exception — Afghanistan argued essentially that the terrorism exception occupied the field and that claims that did not fall within that exception could not be brought under another exception. The Second Circuit affirmed the lower court's rejection of that argument.

The Court of Appeals focused nearly exclusively on the text of the statute. The noncommercial tort exception provides jurisdiction in cases that are noncommercial, seek money damages, for personal injury or death, or damage to or loss of property, that occurred in the U.S., and that are caused by the tortious act of the non-U.S...