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2nd Cir. Reverses, Brings Saudi Arabia Back Into 9/11 Litigation

By Gabriella Khorasanee, JD on December 23, 2013 | Last updated on March 21, 2019

More than a dozen years after the 9/11 terror attacks, memories are stirred almost monthly as 9/11-related litigation continues to make its way through the courts. In the latest development, the Second Circuit reversed the district court, essentially bringing Saudi Arabia back into the mix.

Factual and Procedural Background

There are many 9/11 cases in the judicial system. This particular case involves two: In re: Terrorist Attacks on September 11, 2001 (Kingdom of Saudi Arabia et al.) ("Terrorist Attacks") and Doe v. Bin Laden. Both cases are brought by plaintiffs seeking damages from Saudi Arabia, and Afghanistan, respectively for injuries and death resulting from the 9/11 attacks.

Tort v. Terrorism Exception

In both cases, the countries argued that they were immune under the Foreign Sovereign Immunities Act.

In Terrorist Attacks, brought in federal court in New York, the Second Circuit ruled that the "terrorism exception" to sovereign immunity precluded use of the "tort exception" where the underlying tort was a terrorist act. Doe v. Bin Laden, on the other hand, originated in the D.C. Circuit, which came to the opposite conclusion that the Second Circuit did, holding that the existence of a "terrorism exception" did not preclude the use of the "tort exception" -- even when the underling tort was an act of terrorism.

After the decision of the D.C. district court, Bin Laden was transferred to the Southern District of New York, now with two conflicting precedents within the Second Circuit. To alleviate the discord, the Second Circuit reviewed the Bin Laden decision in a "mini-en banc" review," and adopted the position of the Bin Laden court.

Discretionary Function Limitation Review

That left the Terrorist Attacks plaintiffs in a position where they did not receive the benefit of the Bin Laden holding, so they moved for Rule 60(b) relief.

But here's the rub: the Second Circuit affirmed the issue on other grounds -- the "terrorism exception ground" -- whereas the district court found that the discretionary function limitation applied to the tort exception. The problem is that the Second Circuit didn't even address the merits of the discretionary function limitation to the tort exception.

Rule 60(b)

Here, the court noted that while under normal circumstances "a mere change in the decisional law does not constitute an 'extraordinary circumstance' for purposes of Rule 60(b0(6)," the circumstances were far from ordinary. Because two sets of plaintiffs in the same court, suing for the same thing, would have two different results, the Second Circuit found extraordinary circumstances.

While coming to the correct conclusion, we would counsel against the use of 9/11 cases as precedent for general propositions. The decisions are based on such a particular set of facts that it would take a lot of convincing to apply them to situations that are not as extraordinary.

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