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The Second Circuit Court of Appeals ruled today that a widower could move forward with limited discovery in his 9/11 lawsuit alleging Afghanistan's involvement in the September 11 attacks.
Plaintiff-Appellee John Doe, whose wife died in the al-Qaeda attacks, filed suit in 2002 against Osama Bin Laden and Afghanistan. Doe's complaint alleged assault and battery, false imprisonment, intentional infliction of emotional distress, conspiracy, wrongful death and violation of the Anti-Terrorism Act.
Initially, Afghanistan did not respond to the suit, and in January 2003 the clerk of the district court entered a default. In February 2004, Afghanistan moved to vacate the entry of default and to dismiss the complaint for lack of subject matter jurisdiction.
Afghanistan argued that claims like Doe's, predicated on terrorist acts, can only be brought under the terrorism exception to 28 U.S.C. §1605. That exception is not available against Afghanistan, because the State Department has not designated Afghanistan as a state sponsor of terrorism.
In September 2008, the district court concluded that Doe's suit was properly cognizable under the noncommercial tort exception, rather than the terrorism exception, of §1605.
Today, the Second Circuit Court of Appeals agreed with the district court that Doe's suit could be considered under the noncommercial tort exception to foreign sovereign immunity. Holding that factual issues persist with respect to whether the Taliban's actions in allegedly agreeing to facilitate the attacks are properly considered as Afghanistan's actions, and as to whether any such actions were "discretionary," the court remanded the case for jurisdictional discovery, per Afghanistan's request.
The court explicitly stated that it was not making a judgment as to whether the allegations in the complaint were sufficient to state a claim, or to provide jurisdiction; instead, the Second Circuit Court of Appeals simply allowed limited discovery to determine whether jurisdiction exists.
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