In re Terrorist Attacks on September 11, 2001, No. 06-0319 (2d Cir. 2008)

Annotate this Case

Download PDF

06-0319-cv(L) In re Terrorist Attacks on September 11, 2001 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued: January 18, 2008 Decided: August 14, 2008) Docket No. 06-0319-cv(L) - - - - - - - - - - - - - - - - - - - -x IN RE TERRORIST ATTACKS ON SEPTEMBER 11, 2001 - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CABRANES, Circuit Judge, VITALIANO, District Judge.* Appeal from orders entered in the district court for 26 the Southern District of New York (Casey, J.), dismissing 27 claims against the seven Saudi Arabian defendants-appellees 28 for lack of subject matter jurisdiction and personal 29 jurisdiction. 30 31 32 33 Affirmed. JAMES P. KREINDLER, Kreindler & Kreindler LLP, New York, NY (Mark S. Moller, Justin T. Green, Blanca I. Rodriguez, * The Honorable Eric N. Vitaliano of the United States District Court for the Eastern District of New York, sitting by designation. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Andrew J. Maloney, III, of counsel, Vincent I. Parrett, on the brief), for the Ashton Plaintiffs-Appellants. STEPHEN A. COZEN, Cozen O Connor, Philadelphia, PA (Elliott R. Feldman, Sean P. Carter, of counsel, Stephen B. Burbank, Philadelphia, PA, on the brief), for PlaintiffsAppellants Federal Insurance Company, Pacific Employers Insurance Company and Vigilant Insurance Company. ANDREA BIERSTEIN, Hanly Conroy Bierstein Sheridan Fisher & Hayes LLP, New York, NY (Ronald L. Motley, Jodi W. Flowers, Michael Elsner, Justin B. Kaplan, Motley Rice LLC, Mt. Pleasant, SC, of counsel, Paul Hanly, Jr., Jayne Conroy, Hanly Conroy Bierstein Sheridan Fisher & Hayes LLP, on the brief), for the Burnett and World Trade Center Properties and Euro Brokers Plaintiffs-Appellants. ROBERT M. KAPLAN, Ferber Chan Essner & Coller, LLP, New York, NY, for Plaintiffs-Appellants Continental Casualty Company, Transcontinental Insurance Company, Transportation Insurance Company, Valley Forge Insurance Company, National Fire Insurance Company of Hartford and American Casualty Company of Reading, Pennsylvania. JERRY S. GOLDMAN, Law Offices of Jerry S. Goldman & Associates, 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 P.C., New York, NY, Frederick J. Salek, on the brief), for the O Neill Plaintiffs-Appellants. DAVID H. FROMM, Brown Gavalas & Fromm LLP, New York, NY (Frank J. Rubino, on the brief), for Plaintiff-Appellant New York Marine and General Insurance Company. KENNETH L. ADAMS, Dickstein Shapiro LLP, Washington, DC (Christopher T. Leonardo, on the brief), for PlaintiffsAppellants Cantor Fitzgerald & Co. and Port Authority of New York and New Jersey. MICHAEL K. KELLOGG, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, DC (Mark C. Hansen, Colin S. Stretch, Kelly P. Dunbar, on the brief), for Defendants-Appellees the Kingdom of Saudi Arabia and His Royal Highness Prince Turki al-Faisal bin Abdulaziz al-Saud. LAWRENCE S. ROBBINS, Robbins, Russell, Englert, Orseck & Untereiner LLP, Washington, DC (Roy T. Englert, Jr., Alison C. Barnes, Rachel S. Li Wai Suen, on the brief), for DefendantAppellee the Saudi High Commission. WILLIAM H. JEFFRESS, JR., Baker Botts LLP, Washington, DC (Jeffrey A. Lamken, Christopher R. Cooper, Sara E. Kropf, Jamie S. Kilberg, Allyson N. Ho, on the brief), for Defendants3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Appellees His Royal Highness Prince Salman bin Abdulaziz alSaud, His Royal Highness Crown Prince Sultan bin Abdulaziz alSaud, His Royal Highness Prince Naif bin Abdulaziz al-Saud. LOUIS R. COHEN, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC (Shirley C. Woodward, Tracey C. Allen, Douglas F. Curtis, David Bowker, on the brief), for DefendantAppellee His Royal Highness Prince Mohamed al Faisal al Saud. DENNIS JACOBS, Chief Judge: The plaintiffs-appellants are persons who incurred 21 losses in the September 11, 2001 terrorist attacks: those 22 who suffered personal injuries, the families and 23 representatives of those who died, insurers and property 24 owners. 25 parties: foreign governments, charitable entities, and 26 individuals alleged to have provided financial and 27 logistical support to al Qaeda in the runup to the attacks. 28 Plaintiffs take this appeal from a partial final judgment 29 entered on January 10, 2006 in the United States District 30 Court for the Southern District of New York (Casey, J.), 31 dismissing their claims against twelve of the numerous 32 defendants. They have brought tort claims against hundreds of They have appealed that judgment with respect 4 1 to seven of the dismissed defendants: the Kingdom of Saudi 2 Arabia ( the Kingdom ), four Saudi princes ( Four Princes ), 3 a Saudi banker ( Mohamed ), and the Saudi High Commission 4 for Relief to Bosnia and Herzegovina ( SHC ). 5 jurisdiction over their appeals pursuant to 28 U.S.C. § 6 1291. 7 We have The chief issue on appeal is the scope of foreign 8 sovereign immunity. 9 1976, 28 U.S.C. §§ 1330, 1602-1611 ( FSIA ), grants foreign 10 sovereigns immunity from suit in the United States subject 11 to enumerated exceptions. 12 protects the appellees--most obviously, the Kingdom itself. 13 First, we hold that the FSIA applies to individual officials 14 of foreign governments in their official capacities, and 15 therefore to the Four Princes. 16 district court s conclusion that the SHC is an agency or 17 instrumentality of the Kingdom, to which the FSIA likewise 18 applies. 19 The Foreign Sovereign Immunities Act of We conclude that the FSIA Second, we affirm the Further, we conclude that none of the FSIA s exceptions 20 applies. 21 statutory exception for state-sponsored terrorist acts, 28 22 U.S.C. § 1605A ( Terrorism Exception ), because the Kingdom The plaintiffs claims do not come within the 5 1 has not been designated a state sponsor of terrorism by the 2 United States. 3 death caused by a foreign sovereign s tortious act, id. § 4 1605 (a)(5) ( Torts Exception ), we decline to characterize 5 plaintiffs claims--expressly predicated on a state- 6 sponsored terrorist act--as sounding in tort. 7 plaintiffs claims come within the statutory exception for a 8 foreign sovereign s commercial activity, id. § 1605(a)(2) 9 ( Commercial Activities Exception ), because the defendants As to the exception for personal injury or Nor do the 10 specific alleged conduct--supporting Muslim charities that 11 promote and underwrite terrorism--is not conduct in trade, 12 traffic or commerce. 13 Accordingly, we agree with the district court that it 14 lacked subject matter jurisdiction over the claims against 15 the Kingdom, the Four Princes in their official capacities, 16 and the SHC. 17 dismissal of the claims against the Four Princes (in their 18 personal capacities) and Mohamed for want of personal 19 jurisdiction, and the denial of the plaintiffs motions for 20 jurisdictional discovery. We likewise affirm the district court s 21 22 6 1 2 BACKGROUND The complaints vary somewhat in their details, but they 3 share a core allegation: the defendants played a critical 4 role in the September 11 attacks by funding Muslim charities 5 that, in turn, funded al Qaeda. 6 trigger to pull or a bomb to blow up without the resources 7 to acquire such tools of terrorism and to bankroll the 8 persons who actually commit the violence, 9 Literacy Inst., 291 F.3d 1000, 1021 (7th Cir. 2002), Since there would not be a Boim v. Quranic 10 plaintiffs argue that the defendants should be held liable 11 for the consequences of their material support for al Qaeda. 12 The complaints, which we accept as true at the pleading 13 stage, Garb v. Republic of Poland, 440 F.3d 579, 581 (2d 14 Cir. 2006), allege the facts set forth below. 15 16 17 18 The SHC2 The SHC was formed in 1993 by decree of King Fahd (who 19 was then President of the Council of Ministers, the 20 Kingdom s highest governing body), apparently to support 2 The SHC was named as a defendant in the complaints filed by Federal Insurance, Burnett, Ashton, Cantor, New York Marine and General Insurance Company, World Trade Center Properties and Euro Brokers. 7 1 Bosnian Muslims displaced by civil war. 2 fully integrated component of al Qa[e]da s logistical and 3 financial support infrastructure. 4 Qaeda fighters began infiltrating Bosnia disguised as SHC 5 relief workers. 6 al Qaeda, evidenced by investigators inability to account 7 for nearly $41 million in SHC donations. 8 2001 raid of the SHC s Sarajevo offices, U.S. government 9 officials found computer hard drives containing photos of The SHC acted as a In the early 1990s, al The SHC has funneled millions of dollars to In an October 10 the World Trade Center, the U.S. embassies in Kenya and 11 Tanzania, and the U.S.S. Cole (all targets of terrorist 12 attacks); documents about pesticides and crop dusters; 13 photos and maps of Washington, D.C. (with prominent 14 government buildings marked); and instructions for 15 fabricating U.S. State Department badges. 16 the Bosnian Financial Police reported that peacekeeping 17 forces confiscated some documentation for which it can be 18 claimed with certainty that it does not belong in the scope 19 of work of a humanitarian organization. 20 After the raid, Similar allegations have been lodged against numerous 21 other Muslim charities. 22 raised in this appeal, the allegations about the charities Although those claims are not 8 1 provide the necessary background for the issues here. 2 summary allegation is as follows: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 The Ostensible charitable organizations, and in particular, Islamic charities under the control of the Kingdom of Saudi Arabia, have played a singularly important role in al Qa[e]da s development and pursuit of its perverse ambitions. These charities have served as the primary vehicle for raising, laundering and distributing funds on behalf of al Qa[e]da from its inception. In addition, these charities have provided arms, false travel documentation, physical assets and logistical support to al Qa[e]da. These allegations include a wealth of detail 17 (conscientiously cited to published and unpublished sources) 18 that, if true, reflect close working arrangements between 19 ostensible charities and terrorist networks, including al 20 Qaeda. 21 the charities (or their branch offices) as Specifically 22 Designated Global Terrorists, and has taken steps to shut 23 down their operations. The United States government has listed several of 24 25 The Kingdom of Saudi Arabia3 26 The Kingdom contributed to the terrorist-linked 3 The Kingdom is named as a defendant in the complaints filed by Federal Insurance, Vigilant, Cantor, New York Marine, O Neill and Pacific Employers. 9 1 charities described above and closely monitored their relief 2 efforts abroad, with the express knowledge that those 3 charities were funneling the Kingdom s funds to al Qaeda. 4 According to the Federal Insurance Plaintiffs, the Kingdom 5 exercises complete oversight and control over the charities, 6 making the charities alter-egos and agents whose deeds can 7 be imputed to the Kingdom. 8 9 The Four Princes4 10 The Four Princes are: His Royal Highness Prince Salman 11 bin Abdulaziz al-Saud ( Prince Salman ), His Royal Highness 12 Crown Prince Sultan bin Abdulaziz al-Saud ( Prince Sultan ), 13 His Royal Highness Prince Naif bin Abdulaziz al-Saud 14 ( Prince Naif ), and His Royal Highness Prince Turki al- 15 Faisal bin Abdulaziz al-Saud ( Prince Turki ). 16 stated, it is alleged that they caused money to be given to 17 the Muslim charities (from the Kingdom as well as their own 18 accounts), with the knowledge that the charities would 4 Broadly Princes Sultan and Turki are named as defendants in the complaints filed by Ashton, Burnett, Cantor, Continental Casualty, Euro Brokers, Federal Insurance, New York Marine and World Trade Center Properties. Princes Salman and Naif are named as defendants in the Ashton, Burnett, Cantor and Federal complaints. 10 1 2 transfer the funds to al Qaeda. Princes Naif, Sultan and Turki sit on the Kingdom s 3 Supreme Council of Islamic Affairs, which monitors and 4 approves Islamic charitable giving both within and outside 5 the Kingdom. 6 obtain government approval for private charitable giving 7 abroad.) 8 9 (The Kingdom generally requires Saudis to Prince Salman is President of the SHC and Governor of Riyadh Province. He intended that the SHC would be a 10 conduit for funding and supporting the Bosnian Islamic 11 movement, including al Qaeda. 12 notice of SHC s connection with al Qaeda by a letter he 13 received in 2000 from a group called the Mothers of 14 Srebrenica complaining that the SHC s money was not being 15 used for humanitarian aid in Bosnia. 16 Prince Salman was put on Prince Sultan is Chairman of the Supreme Council and 17 First Deputy President of the Council of Ministers. 18 been designated as the successor to King Abdullah. 19 received at least three warnings that the Muslim charities 20 were al Qaeda fronts.5 He has Sultan Prince Sultan also made personal 5 [1] At a November 1994 meeting with Princes Sultan and Naif, French Interior Minister Charles Pasqua raised the question of financial aid furnished by Saudi charitable 11 1 contributions to the charities. 2 in a Muslim newspaper, he donated one million Saudi dollars 3 to one of the charities pursuant to an annual pledge. 4 Sultan also made a sizable contribution to the Saudi Joint 5 Relief Committee of Kosovar Refugees ( SJRC ), which 6 oversees several other Muslim charities. According to a 1996 report 7 Prince Naif is Saudi Minister of the Interior, in which 8 capacity he monitors and controls the charities that operate 9 in Saudi Arabia. At one time, Naif served as the General 10 Supervisor of the SJRC. 11 Sultan when he was warned that Saudi charities serve as 12 fronts for terrorist groups. 13 contributed more than two million Saudi dollars to the SJRC, 14 and has helped the SJRC raise money from other wealthy 15 Saudis. Prince Naif was present with Prince Naif has personally organizations enjoying state support, in particular the World Islamic League, to Islamist movements or terrorist groups . . . insofar as the Islamist groups receiving this aid were likely to damage French interests or had already done so in the past ; [2] at a 1999 meeting between U.S. representatives and the Finance Ministry, intelligence, and law enforcement officials in Saudi Arabia, the United States put Saudi Arabia and the United Arab Emirates on notice of its intent to apply pressure to deal effectively with those who fund terrorism, and soon thereafter, Sultan visited the White House to discuss terrorism issues; and [3] in 1997, Sultan joined an anti-terrorism initiative with the United States. 12 1 Prince Turki was the director of the Kingdom s 2 Department of General Intelligence ( DGI ) until August 3 2001. 4 embassy in Islamabad, Pakistan; he later met with bin Laden 5 at least five times in the 1980s and 1990s. 6 agreed with the Taliban and al Qaeda that the Kingdom would 7 not attempt to extradite bin Laden or his followers, in 8 return for bin Laden s agreement not to target the Kingdom 9 or its royal family. In the 1980s, Turki met Osama bin Laden at the Saudi In 1998, Turki During Turki s tenure, there existed 10 near identity between DGI and the Taliban. 11 Plaintiffs allege in addition that Turki donated to the 12 charities in his personal capacity. The Federal 13 14 Prince Mohamed6 15 The plaintiffs claims against Mohamed, His Royal 16 Highness Prince Mohamed al Faisal al Saud, focus on his role 17 in Islamic banking.7 18 held accounts at banks (and subsidiaries of banks) managed Osama bin Laden and other terrorists 6 Prince Mohamed is named as a defendant in the complaints filed by Ashton, Burnett, Cantor, Continental Casualty, Euro Brokers, Federal Insurance, New York Marine, O Neill and World Trade Center Properties. 7 Unlike the Four Princes, Prince Mohamed is not a government official of the Kingdom. 13 1 by Mohamed; those banks are governed by Islamic law, or 2 sharia, which prohibits interest; instead, the banks and 3 their depositors manage the funds jointly. 4 that Mohamed knowingly provided material sponsorship to 5 international terrorism. It is alleged 6 7 Procedural History 8 The Burnett Plaintiffs filed suit against Princes 9 Sultan and Turki (and other defendants not present in this 10 appeal) in the United States District Court for the District 11 of Columbia. 12 the claims brought against Princes Sultan and Turki in their 13 official capacities for lack of subject matter jurisdiction, 14 and the claims against Prince Sultan in his personal 15 capacity for lack of personal jurisdiction. 16 Baraka Inv. & Dev. Corp., 292 F. Supp. 2d 9 (D.D.C. 2003). 17 On December 9, 2003, the Judicial Panel on Multi- The district court (Robertson, J.), dismissed Burnett v. Al 18 district Litigation transferred Burnett to the United States 19 District Court for the Southern District of New York as MDL 20 1570 to be consolidated for pretrial purposes with other 21 similar cases. 22 the late Judge Richard Conway Casey. The consolidated proceeding was assigned to 14 1 On January 18, 2005, Judge Casey dismissed the 2 consolidated claims against the Kingdom, Princes Sultan and 3 Turki, and Mohamed. 4 2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005) ( In re Terrorist 5 Attacks I ). 6 Judge Casey concluded that the FSIA shields Princes Sultan 7 and Turki in their official capacities. 8 not dispute that the FSIA protects the Kingdom as a foreign 9 sovereign.) 10 In re Terrorist Attacks on Sept. 11, Citing the majority view among the circuits, (The plaintiffs do Judge Casey further held that no exception to the FSIA defeated the defendants sovereign immunity. 11 Judge Casey likewise dismissed the claims against 12 Princes Sultan and Turki (in their personal capacities) and 13 against Mohamed for lack of personal jurisdiction. 14 Casey reasoned that the plaintiffs had failed to offer any 15 facts to lend support to their allegation that Prince Sultan 16 purposefully directed his activities at this forum by 17 donating to charities that he knew at the time supported 18 international terrorism. 19 Supp. 2d at 813. 20 to present any specific facts from which this Court could 21 infer Prince Turki s primary and personal involvement in, or 22 support of, international terrorism and al Qaeda. Judge In re Terrorist Attacks I, 349 F. Similarly, the Federal Plaintiffs failed 15 1 Conclusory allegations that he donated money to charities, 2 without specific factual allegations that he knew they were 3 funneling money to terrorists, do not suffice. 4 14. 5 had any knowledge or involvement in any al Qaeda accounts at 6 any of the banks he chaired ; and his connection to the 7 Sudanese bank which purportedly knowingly opened accounts 8 for al Qaeda operatives, including Osama bin Laden, is too 9 remote in time and proximity to implicate him. 10 Id. at 813- Finally, there was no allegation that Prince Mohamed Id. at 816. On May 5, 2005, the district court entered an order 11 dismissing the claims against the Kingdom, Princes Sultan 12 and Turki, and Mohamed in the remaining consolidated cases. 13 (The plaintiffs conceded that the allegations and evidence 14 in the other consolidated cases against those four 15 defendants did not materially differ from the allegations in 16 the cases already dismissed.) 17 In an opinion and order issued on September 21, 2005, 18 the district court dismissed the Ashton, Burnett and Federal 19 Plaintiffs claims against Princes Salman and Naif and the 20 SHC on substantially the same grounds. 21 that the SHC is an agency of the Kingdom entitled to 22 immunity under the FSIA, and that subject matter 16 The court concluded 1 jurisdiction was therefore lacking over the claims against 2 the SHC and Princes Salman and Naif (in their official 3 capacities). 4 their personal capacity were dismissed for lack of personal 5 jurisdiction. 6 392 F. Supp. 2d 539 (S.D.N.Y. 2005) ( In re Terrorist 7 Attacks II ). 8 9 The claims against Princes Salman and Naif in In re Terrorist Attacks on Sept. 11, 2001, On December 16, 2005, the district court certified as final the orders of January 18, 2005 and September 21, 10 2005, pursuant to Rule 54(b) of the Federal Rules of Civil 11 Procedure, with respect to the Kingdom; Princes Sultan, 12 Turki, Salman and Naif; Mohamed and the SHC.8 13 the December 16, 2005 certification, this Court has 14 jurisdiction over the appeal under 28 U.S.C. § 1291. By virtue of 15 16 DISCUSSION 17 The standard of review applicable to district court 18 decisions regarding subject matter jurisdiction under the 19 FSIA is clear error for factual findings and de novo for 20 legal conclusions. Robinson v. Gov t of Malaysia, 8 Per stipulation, the plaintiffs with claims pending against Princes Salman and Naif will be bound by any appellate decision on the district court s dismissals. 17 1 269 F.3d 133, 138 (2d Cir. 2001) (quoting U.S. Titan, Inc. 2 v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 150-51 (2d 3 Cir. 2001) (internal quotation marks omitted)). 4 standards apply to decisions on personal jurisdiction. 5 Sunward Electronics, Inc. v. McDonald, 362 F.3d 17, 22 (2d 6 Cir. 2004). 7 jurisdictional discovery for abuse of discretion. 8 Lines, Inc. v. Walker, 490 F.3d 239, 255 (2d Cir. 2007). The same We review a district court s decision to deny Best Van 9 10 11 I [T]he FSIA provides the sole basis for obtaining 12 jurisdiction over a foreign state in federal court. 13 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 14 428, 439 (1989). 15 Nigeria, 461 U.S. 480, 493 (1983) (stating that the FSIA 16 must be applied by the District Courts in every action 17 against a foreign sovereign, since subject matter 18 jurisdiction in any such action depends on the existence of 19 one of the specified exceptions to foreign sovereign 20 immunity (citing 28 U.S.C. § 1330(a)); Cabiri v. Gov t of 21 Republic of Ghana, 165 F.3d 193, 196 (2d Cir. 1999) ( The 22 FSIA is the sole source for subject matter jurisdiction over See also Verlinden B.V. v. Cent. Bank of 18 1 any action against a foreign state. ). 2 foreign state is presumptively immune from the jurisdiction 3 of United States courts; unless a specified exception 4 applies, a federal court lacks subject-matter jurisdiction 5 over a claim against a foreign state. 6 Nelson, 507 U.S. 349, 355 (1993); 28 U.S.C. § 1604 (making 7 foreign states immune from the jurisdiction of the courts 8 of the United States and of the States except as provided in 9 sections 1605 to 1607 of this chapter ). Under the Act, a Saudi Arabia v. Potentially 10 relevant here are the exceptions for torts, terrorism, and 11 commercial activities. 12 1605(a)(2). 13 28 U.S.C. §§ 1605(a)(5), 1605A, Under the FSIA, . . . personal jurisdiction equals 14 subject matter jurisdiction plus valid service of process. 15 Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1020 (2d Cir. 16 1991). 17 a foreign state shall exist as to every claim for relief 18 over which the district courts have jurisdiction under 19 subsection (a) where service has been made under section 20 1608 of this title. ). 21 personal jurisdiction where the Constitution forbids it. 22 Accordingly, each finding of personal jurisdiction under the See 28 U.S.C. § 1330(b) ( Personal jurisdiction over Of course, the Act cannot create 19 1 FSIA requires, in addition, a due process scrutiny of the 2 court s power to exercise its authority over a particular 3 defendant. 4 of Nigeria, 647 F.2d 300, 308 (2d Cir. 1981). 5 Texas Trading & Milling Corp. v. Fed. Republic In a motion to dismiss for lack of subject matter 6 jurisdiction under the FSIA, the defendant must present a 7 prima facie case that it is a foreign sovereign. 8 Countries, Inc. v. Republic of South Africa, 300 F.3d 230, 9 241 (2d Cir. 2002) (internal quotation marks omitted). Virtual The 10 plaintiff then has the burden of going forward with 11 evidence showing that, under exceptions to the FSIA, 12 immunity should not be granted. 13 M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993). 14 Determining whether this burden is met involves a review 15 [of] the allegations in the complaint, the undisputed facts, 16 if any, placed before [the court] by the parties, and--if 17 the plaintiff comes forward with sufficient evidence to 18 carry its burden of production on this issue--[resolution 19 of] disputed issues of fact. 20 at 241 (quoting Robinson, 269 F.3d at 141 (alterations in 21 original and internal quotation marks omitted)). 22 ultimate burden of persuasion remains with the alleged 20 Cargill Intern. S.A. v. Virtual Countries, 300 F.3d The 1 foreign sovereign. 2 Robinson, 269 F.3d at 141 (internal quotation marks 3 omitted)). Cargill, 991 F.2d at 1016 (quoting 4 5 6 7 II This Circuit has not yet decided whether the FSIA 8 protects an individual official of a foreign government 9 acting in his official capacity. See Kensington Intern. 10 Ltd. v. Itoua, 505 F.3d 147, 160, 161 (2d Cir. 2007) 11 (acknowledging that it is an open question in this circuit 12 whether individual officials enjoy sovereign immunity under 13 the FSIA, and remanding for the district court to address 14 in the first instance . . . under what circumstances, if 15 any, the FSIA applies to individuals ); Tachiona v. United 16 States, 386 F.3d 205, 220 (2d Cir. 2004) (expressing in 17 dicta some doubt as to whether the FSIA was meant to 18 supplant the common law of head-of-state immunity, which 19 generally entailed deference to the executive branch s 20 suggestions of immunity ); In re Doe, 860 F.2d 40, 45 (2d 21 Cir. 1988) ( Because the FSIA makes no mention of 22 heads-of-state, their legal status remains uncertain. ). 23 21 1 2 A We join our sister circuits in holding that an 3 individual official of a foreign state acting in his 4 official capacity is the agency or instrumentality of the 5 state, and is thereby protected by the FSIA. 6 Gov t of Indonesia, 370 F.3d 392, 399 (4th Cir. 2004) 7 ( Claims against the individual in his official capacity are 8 the practical equivalent of claims against the foreign 9 state. ); Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 815 See Velasco v. 10 (6th Cir. 2002) ( [N]ormally foreign sovereign immunity 11 extends to individuals acting in their official capacities 12 as officers of corporations considered foreign 13 sovereigns. ); Byrd v. Corporacion Forestal y Industrial de 14 Olancho S.A., 182 F.3d 380, 388 (5th Cir. 1999) (same); 15 Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 16 1020, 1027 (D.C. Cir. 1997) ( Individuals acting in their 17 official capacities are considered agenc[ies] or 18 instrumentalit[ies] of a foreign state; these same 19 individuals, however, are not entitled to immunity under the 20 FSIA for acts that are not committed in an official 21 capacity. ); Chuidian v. Philippine Nat l Bank, 912 F.2d 22 1095, 1101-03 (9th Cir. 1990) ( We thus join the majority of 22 1 courts which have similarly concluded that section 1603(b) 2 can fairly be read to include individuals sued in their 3 official capacity. ). 4 Circuit have reached the same conclusion. 5 Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 6 184 F. Supp. 2d 277, 286-87 (S.D.N.Y. 2001) (Lynch, J.); 7 Tannenbaum v. Rabin, 1996 WL 75283, at *2 (E.D.N.Y. Feb. 13, 8 1996) (Glasser, J.); Bryks v. Canadian Broad. Corp., 906 F. 9 Supp. 204, 210 (S.D.N.Y. 1995) (Mukasey, J.); Kline v. Several district judges in this See, e.g., 10 Kaneko, 685 F. Supp. 386, 389 n.1 (S.D.N.Y. 1988) (Ward, 11 J.). 12 The Seventh Circuit is an outlier. It has construed 13 the FSIA s grant of immunity narrowly, to exclude individual 14 government officials, reasoning that [i]f Congress meant to 15 include individuals acting in the official capacity in the 16 scope of the FSIA, it would have done so in clear and 17 unmistakable terms. 18 881-82 (7th Cir. 2005). Enahoro v. Abubakar, 408 F.3d 877, 19 20 21 22 B [F]oreign sovereign immunity is a matter of grace and comity on the part of the United States, and not a 23 1 restriction imposed by the Constitution. 2 U.S. at 486. 3 . . deferred to the decisions of the political branches--in 4 particular, those of the Executive Branch--on whether to 5 take jurisdiction over actions against foreign sovereigns 6 and their instrumentalities. 7 Department issued the Tate Letter, 9 which announced [the] 8 adoption of the restrictive theory of foreign sovereign 9 immunity. Verlinden, 461 Until the 1950s, the judiciary consistently . Id. In 1952, the State Under this theory, immunity is confined to suits 10 involving the foreign sovereign s public acts, and does not 11 extend to cases arising out of a foreign state s strictly 12 commercial acts. 13 the scheme of the Tate Letter as follows: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Id. at 487. The Ninth Circuit described Typically, a foreign state or instrumentality faced with a suit in a court in our country would apply to the State Department for a finding of immunity. The State Department would make a determination, considering the common law principles expressed in the Restatement, and would convey the finding to the relevant court by filing a suggestion. In fact, however, the courts treated such suggestions as binding determinations, and would invoke or deny immunity based upon the decision of the State Department. Chuidian, 912 F.2d at 1100. But by the 1970s, some in 9 Jack B. Tate was then Acting Legal Adviser of the Department of State. 24 1 Congress had grown concerned that the Tate Letter system was 2 leaving immunity decisions subject to diplomatic pressures 3 rather than to the rule of law. Id. 4 The FSIA, enacted in 1976, largely codif[ied] the 5 existing common law of sovereign immunity, with the notable 6 exception that it remove[d] the role of the State 7 Department in determining immunity. 8 Rep. No. 94-1487, at 7 (1976), reprinted in 1976 9 U.S.C.C.A.N. 6604, 6605 ( House Report ) ( [T]he bill would Id.; see also H.R. 10 codify the so-called restrictive principle of sovereign 11 immunity, as presently recognized in international law. 12 Under this principle, the immunity of a foreign state is 13 restricted to suits involving a foreign state s public 14 acts (jure imperii) and does not extend to suits based on 15 its commercial or private acts (jure gestionis). ). 16 Recognizing the potential sensitivity of actions 17 against foreign states, the FSIA aimed to facilitate and 18 depoliticize litigation against foreign states and to 19 minimize irritations in foreign relations arising out of 20 such litigation. 21 citation and quotation marks omitted). 22 Cargill, 991 F.2d at 1016 (internal The FSIA defines foreign state as follows: 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (a) foreign state . . . includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). (b) An agency or instrumentality of a foreign state means any entity-(1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country. 28 U.S.C. § 1603(a), (b). 26 27 28 C Several plaintiffs read state, as used in the FSIA, 29 as a term of art meaning an entity that has a defined 30 territory and a permanent population, under the control of 31 its own government, and that engages in, or has the capacity 32 to engage in, formal relations with other such entities. 33 Restatement (Third) of Foreign Relations Law § 201 (1987). 34 This definition necessarily excludes individual government 26 1 officials. 2 considered an agency or instrumentality of a state, 3 because the entities listed in the subclauses of § 1603(b) 4 are defined in terms not usually used to describe natural 5 persons. 6 curiae in another FSIA lawsuit, the Department of Justice 7 has opined that the FSIA, with its exclusions and 8 obscurities, stops short of shielding government officials, 9 who instead enjoy an expansive common law immunity.10 Nor, argue these plaintiffs, can an official be Tachiona, 386 F.3d at 221. Writing as amicus 10 Because we decide this case on the ground that the FSIA 11 protects individual government representatives in their 12 official capacities, we need not consider any continuing 13 vitality of sovereign immunity under the common law. 14 The Ninth Circuit s opinion in Chuidian is the most 15 detailed statement of the majority view that an individual 16 official is an agency or instrumentality of a foreign 17 government. 18 instrumentality, organ, entity, and legal person, 19 while perhaps more readily connoting an organization or As Chuidian observes, the terms agency, 10 In a letter filed pursuant to Fed. R. App. P. 28(j), the Four Princes submitted the amicus brief of the Department of Justice from Kensington Intern. Ltd. v. Itoua, 505 F.3d 147, 160 (2d Cir. 2007). 27 1 collective, do not in their typical legal usage necessarily 2 exclude individuals. 3 Moreover, the FSIA s legislative history does not even hint 4 of an intent to exclude individual officials, but does 5 contain numerous statements [suggesting] that Congress 6 intended the Act to codify the existing common law 7 principles of sovereign immunity. 8 passage, those principles expressly extended immunity to 9 individual officials acting in their official capacity. Chuidian, 912 F.2d at 1101. Id. Prior to the FSIA s 10 Id.; see also Restatement (Second) of Foreign Relations Law 11 § 66(f) (1965) ( The immunity of a foreign state . . . 12 extends to . . . 13 agent of the state with respect to acts performed in his 14 official capacity if the effect of exercising jurisdiction 15 would be to enforce a rule of law against the state. ). 16 a consequence, if the FSIA did not extend to individuals, it 17 would represent a substantial unannounced departure from 18 prior common law. 19 because, after the FSIA s passage, the Restatement (Third) 20 of Foreign Relations Law delete[d] in its entirety the 21 discussion of the United States common law of sovereign 22 immunity, and substitute[d] a section analyzing issues any other public minister, official, or Chuidian, 912 F.2d at 1101. 28 As This is so 1 exclusively under the [FSIA]. 2 this revision marks the recognition that we now look to the 3 FSIA where we once sought guidance from the common law, we 4 would expect a departure from the prior common-law rule to 5 be made explicitly, not sub silentio. 6 Id. at 1103. Insofar as The Ninth Circuit rejected the view, advanced by the 7 Department of Justice, that the foreign state is protected 8 by the FSIA while its officials are otherwise protected by 9 common law immunity. Under that approach, presumably . . 10 . [courts] would once again be required to give conclusive 11 weight to the State Department s determination of whether an 12 individual s activities fall within the traditional 13 exceptions to sovereign immunity, which would run counter 14 to Congress s stated intent of removing the discretionary 15 role of the State Department. Id. at 1102. 16 We join the majority of Circuits in holding that the 17 FSIA grants immunity to individual officials of a foreign 18 government for their official-capacity acts, and we 19 subscribe to the reasoning of Chuidian. 20 That analysis, largely based on legislative history, is 21 grounded in the statutory wording. 22 more abstract common meaning than a governmental bureau or 29 The term agency has a 1 office: an agency is any thing or person through which 2 action is accomplished. 3 construe this word in other contexts; however, it is easily 4 open enough to include senior members of a foreign state s 5 government and secretariat. 6 We need not decide how broadly to This reading of agency is consistent with the evident 7 principle that the state cannot act except through 8 individuals. 9 courts from sitting in judgment on the acts of the Thus, the act-of-state doctrine precludes our 10 government of another done within its own territory, 11 including acts committed by individual officials of foreign 12 governments. 13 Cir. 2000) (quoting Underhill v. Hernandez, 168 U.S. 250, 14 252 (1897)). 15 representatives of the state are those of the state itself, 16 when exercised within the scope of their delegated powers. 17 Underhill v. Hernandez, 65 F. 577, 579 (2d Cir. 1895), aff d 18 168 U.S. 250 (1897); see also Oetjen v. Cent. Leather Co., 19 246 U.S. 297, 303 (1918) (concluding that the action of a 20 duly commissioned military commander of the Mexican 21 government [p]lainly . . . was the action, in Mexico, of 22 the legitimate Mexican government when dealing with a Bigio v. Coca-Cola Co., 239 F.3d 440, 451 (2d This is so because the acts of the official 30 1 Mexican citizen ). 2 generally represent only another way of pleading an action 3 against an entity of which an officer is an agent. 4 v. Dep t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). 5 other words, a claim against an agency of state power, 6 including a state officer acting in his official capacity, 7 can be in effect a claim against the state. 8 contexts as well, the law recognizes that the immunity of a 9 principal does not amount to much without the extension of Similarly, official-capacity suits Monell In In other 10 that immunity to its agents. 11 States, 408 U.S. 606, 616-17 (1972) (treating as one a 12 Senator and his aides for purpose of legislative immunity; 13 if they are not so recognized, the central role of the 14 Speech or Debate Clause--to prevent intimidation of 15 legislators by the Executive and accountability before a 16 possibly hostile judiciary--will inevitably be diminished 17 and frustrated (internal citation omitted)); Oliva v. 18 Heller, 839 F.2d 37, 40 (2d Cir. 1988) (reasoning that 19 because law clerks are simply extensions of the judges at 20 whose pleasure they serve . . . for purposes of absolute 21 judicial immunity, judges and their law clerks are as one 22 (internal citation and quotation marks omitted)). See, e.g., Gravel v. United 31 1 This conclusion finds reinforcement in the new 2 iteration of the Terrorism Exception, which makes specific 3 reference to the legal status of an official, employee or 4 agent of the foreign state. 5 (lifting immunity in connection with, inter alia, the 6 provision of material support or resources . . . by an 7 official, employee, or agent of [a] foreign state while 8 acting within the scope of his or her office, employment, or 9 agency ); id. at (c) (creating private right of action See 28 U.S.C. § 1605A(a)(1) 10 against a foreign state that is or was a state sponsor of 11 terrorism . . . , and any official, employee, or agent of 12 that foreign state while acting within the scope of his or 13 her office, employment, or agency ). 14 evince congressional recognition that claims against 15 individual officials of a foreign government must be brought 16 within the confines of the FSIA. 17 officers, as non-state entities, cannot be designated state 18 sponsor[s] of terrorism. 19 nevertheless fall within the scope of the Terrorism 20 Exception to FSIA immunity, Congress enacted specific 21 provisions that defined the exception to reach these 22 individuals. These provisions Individuals and government So that such individuals would If these individuals were not otherwise immune 32 1 from suit pursuant to the FSIA, these provisions would be 2 entirely superfluous. 3 considered individuals and government officers to be within 4 the scope of the FSIA. 5 Congress form a hazardous basis for inferring the intent of 6 an earlier one, the Terrorism Exception suggests that 7 Congress has long contemplated the FSIA s application to 8 individuals. 9 U.S. 321, 348-49 (1963). We can thus infer that Congress Although the views of a subsequent United States v. Philadelphia Nat l Bank, 374 In light of those considerations, 10 we hold that the FSIA treats individual agents of the 11 foreign state, when they undertake their official duties, as 12 the foreign state for the purposes of 28 U.S.C. § 1603. 13 14 15 III The Burnett Plaintiffs challenge the district court s 16 conclusion that the SHC is an agency or instrumentality of 17 the Kingdom and therefore entitled to immunity under the 18 FSIA. 19 20 21 22 23 24 28 U.S.C. § 1603(a). To recap, an agency or instrumentality of a foreign state is any entity (1) which is a separate legal person, corporate or otherwise, and (2) which is an organ of a foreign state or 33 1 2 3 4 5 6 7 8 9 10 11 political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country. 28 U.S.C. § 1603(b). The question is whether the SHC is an organ of the 12 Kingdom. 13 that word in the FSIA; however, criteria can be found: 28 U.S.C. § 1603(b)(2). There is no definition of 14 15 16 17 18 19 20 21 22 23 24 Filler v. Hanvit Bank, 378 F.3d 213, 217 (2d Cir. 2004) 25 (quoting Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 26 841, 846-47 (5th Cir. 2000)). 27 Adriatic Ins. Co., 345 F.3d 190, 209 (3d Cir. 2003) 28 (considering the five Filler factors, along with the level 29 of government financial support and the ownership 30 structure of the entity ). 31 district courts to engage in a balancing process, without (1) whether the foreign state created the entity for a national purpose; (2) whether the foreign state actively supervises the entity; (3) whether the foreign state requires the hiring of public employees and pays their salaries; (4) whether the entity holds exclusive rights to some right in the [foreign] country; and (5) how the entity is treated under foreign state law. See also USX Corp. v. We agree that Filler invites 34 1 particular emphasis on any given factor and without 2 requiring that every factor weigh in favor of, or against, 3 the entity claiming FSIA immunity. 4 Mgmt. Corp., 421 F. Supp. 2d 627, 641 (S.D.N.Y. 2005) 5 (Holwell, J.). 6 Murphy v. Korea Asset To support its status as an organ of the Kingdom, the 7 SHC submitted declarations from Saud bin Mohammad Al- 8 Roshood, Director of the Executive Office of SHC, and Dr. 9 Mutlib bin Abdullah Al-Nafissa, a member of the Council of 10 11 12 Ministers authorized to speak on the SHC s behalf. Al-Roshood explains that, during and after the civil war in Bosnia, 13 14 15 16 17 18 19 20 21 22 23 24 25 Al-Roshood states that many SHC employees are seconded from 26 the Kingdom s ministries or agencies, which continues paying 27 their salaries. 28 SHC, and are paid by the SHC. there was much interest within the Kingdom of Saudi Arabia, both among citizens and the government, in supporting charitable projects in Bosnia-Herzegovina. The Kingdom of Saudi Arabia desired to speak with one voice as a nation . . . The [SHC] was therefore formed to centralize all charitable giving from the Kingdom to Bosnia-Herzegovina. When formed, the [SHC] was vested with the sole authority to collect and distribute charitable funds in Bosnia. Other employees are on contract with the 35 1 Al-Nafissa explains that the Council of Ministers 2 created the SHC in 1993, pursuant to its authority (under 3 Council law) to order the formation of a governmental 4 entity. 5 president. 6 such as the [SHC], always is chaired or presided over by a 7 governmental official and conducts its affairs in accordance 8 with the domestic or foreign policy objectives of the 9 Kingdom, and can be sued for [its] administrative acts in 10 the Board of Grievances, the administrative court of Saudi 11 Arabia. 12 The same order appointed Prince Salman as SHC s Al-Nafissa avers that a government commission, Based on this undisputed record, the Filler factors 13 indicate that the SHC is an organ of the Kingdom. 14 was created for a national purpose (channeling humanitarian 15 aid to Bosnian Muslims); the Kingdom actively supervises it; 16 many SHC workers are Kingdom employees who remain on the 17 Kingdom s payroll; the SHC holds the sole authority to 18 collect and distribute charity to Bosnia; and it can be sued 19 in administrative court in the Kingdom. The SHC 20 The Burnett Plaintiffs note the paucity of information 21 about the SHC s ownership structure (a factor identified by 22 the Third Circuit in USX Corp), and argue that the district 36 1 court gave this insufficient weight. 2 relevance of this factor here: 3 governmental entity that, like numerous agencies within our 4 own government, has no owners or shareholders. 5 We do not see the The SHC is a non-corporate Nor are we persuaded that the SHC waived its immunity 6 by identifying itself as nongovernmental on a registration 7 document filed with Bosnian authorities. 8 courts have observed that the implied waiver provision of 9 Section 1605(a)(1) must be construed narrowly. We and other Smith v. 10 Socialist People s Libyan Arab Jamahiriya, 101 F.3d 239, 243 11 (2d Cir. 1996) (quoting Shapiro v. Republic of Bolivia, 930 12 F.2d 1013, 1017 (2d Cir. 1991)). 13 at 202 (declining to find waiver where defendant had taken 14 no action that can be understood to demonstrate either an 15 objective or a subjective intent to waive immunity with 16 respect to [plaintiffs ] claims ); Frolova v. Union of 17 Soviet Socialist Republics, 761 F.2d 370, 378 (7th Cir. 18 1985) (explaining that waiver would not be found absent a 19 conscious decision to take part in the litigation and a 20 failure to raise sovereign immunity despite the opportunity 21 to do so ). 22 Bosnia does not reflect a conscious decision by the SHC to See also Cabiri, 165 F.3d Registering as a humanitarian organization in 37 1 waive its sovereign immunity in American courts. 2 outside legal counsel in Bosnia avers that the term 3 nongovernmental on the registration documents refers to 4 whether the humanitarian organization is part of the 5 government of Bosnia, and that [t]here is no prohibition 6 against humanitarian organizations that are part of foreign 7 governments operating in Bosnia-Herzegovina. The SHC s 8 9 IV 10 We next consider the plaintiffs arguments about the 11 applicability of two exceptions to the FSIA: the Torts 12 Exception and the Commercial Activities Exception.11 13 14 The FSIA lifts immunity for certain torts committed by foreign sovereigns: 11 Because we conclude that no exception lifts the FSIA s protection of the Kingdom and the SHC, we do not reach the Federal Plaintiffs argument that the actions of the SHC and other charities should be imputed to the Kingdom for FSIA purposes. The World Trade Center Plaintiffs argue that a foreign state without immunity has no Due Process rights that limit the Court s exercise of personal jurisdiction over it. But see Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1020 (2d Cir. 1991) ( There must be sufficient minimum contacts between the foreign state and the forum such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. (quoting Int l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945))). We likewise need not reach that argument. 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 28 U.S.C. § 1605. 32 eliminate a foreign state s immunity for traffic accidents 33 and other torts committed in the United States, for which 34 liability is imposed under domestic tort law. 35 Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439- (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case-. . . (5) not otherwise encompassed in paragraph (2) above,[12] in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to-(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or (B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. Congress enacted the Torts Exception to 12 Argentine Paragraph (2) is the Commercial Activities Exception. See Section V, infra. 39 1 40 (1989); see also MacArthur Area Citizens Ass n v. 2 Republic of Peru, 809 F.2d 918, 921 (D.C. Cir. 1987) 3 ( [A]lthough cast in general terms, the tortious act 4 exception was designed primarily to remove immunity for 5 cases arising from traffic accidents. 6 say that the exception applies only to traffic accidents; 7 rather, the point is that the legislative history counsels 8 that the exception should be narrowly construed so as not to 9 encompass the farthest reaches of common law. (internal 10 citations omitted)); Asociacion de Reclamantes v. United 11 Mexican States, 735 F.2d 1517, 1525 (D.C. Cir. 1984) 12 (Scalia, J.) ( The primary purpose of the tortious act or 13 omission exception of § 1605(a)(5) was to enable officials 14 and employees of foreign sovereigns to be held liable for 15 the traffic accidents which they cause in this country, 16 whether or not in the scope of their official business. ). 17 This is scarcely to The plaintiffs allege that the defendants tortious 18 conduct took the form of providing material support to 19 terrorists. 20 Exception- governs precisely those activities. 21 Terrorism Exception (with some ellipses) is set out in the A different statutory exception -the Terrorism 40 The 1 margin.13 13 (a) In general.-(1) No immunity.--A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency. (2) CLAIM HEARD.--The court shall hear a claim under this section if-(A)(i)(I) the foreign state was designated as a state sponsor of terrorism at the time the act described in paragraph (1) occurred, or was so designated as a result of such act, and, subject to subclause (II), either remains so designated when the claim is filed under this section or was so designated within the 6-month period before the claim is filed under this section; or (II) in the case of an action that is refiled under this section by reason of section 1083(c)(2)(A) of the National Defense Authorization Act for Fiscal Year 2008 or is filed under this section by reason of section 1083(c)(3) of that Act, the foreign state was designated as a state sponsor of terrorism when the original action or the related action under section 1605(a)(7) (as in effect before the enactment of this section) or section 589 of the Foreign Operations, Export Financing, 41 1 and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law 104-208) was filed; (ii) the claimant or the victim was, at the time the act described in paragraph (1) occurred-(I) a national of the United States; (II) a member of the armed forces; or (III) otherwise an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee s employment; and (iii) in a case in which the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration; . . . . (c) PRIVATE RIGHT OF ACTION.--A foreign state that is or was a state sponsor of terrorism as described in subsection (a)(2)(A)(i), and any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, shall be liable to-(1) a national of the United States, (2) a member of the armed forces, (3) an employee of the Government of the United States, or of an individual performing 42 1 a contract awarded by the United States Government, acting within the scope of the employee s employment, or (4) the legal representative of a person described in paragraph (1), (2), or (3), for personal injury or death caused by acts described in subsection (a)(1) of that foreign state, or of an official, employee, or agent of that foreign state, for which the courts of the United States may maintain jurisdiction under this section for money damages. In any such action, damages may include economic damages, solatium, pain and suffering, and punitive damages. In any such action, a foreign state shall be vicariously liable for the acts of its officials, employees, or agents. (d) ADDITIONAL DAMAGES.--After an action has been brought under subsection (c), actions may also be brought for reasonably foreseeable property loss, whether insured or uninsured, third party liability, and loss claims under life and property insurance policies, by reason of the same acts on which the action under subsection (c) is based. . . . . (h) DEFINITIONS.--For purposes of this section-. . . . (6) the term state sponsor of terrorism means a country the government of which the Secretary of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), section 40 of the Arms Export Control Act (22 U.S.C. 2780), or any other provision of law, 43 1 2 Congress enacted the first iteration of the Terrorism 3 Exception in 1996 in order to give American citizens an 4 important economic and financial weapon against . . . outlaw 5 states that sponsor terrorism by providing safe havens, 6 funding, training, supplying weaponry, medical assistance, 7 false travel documentation, and the like. 8 104-383, at 62 (1995). 9 had long been sought by victims groups, but it had been 10 consistently resisted by the executive branch, which feared 11 that such an amendment to the FSIA might cause other 12 nations to respond in kind, thus potentially subjecting the 13 American government to suits in foreign countries for 14 actions taken in the United States. 15 People s Libyan Arab Jamahiriya, 294 F.3d 82, 89 (D.C. Cir. 16 2002). H.R. Rep. No. An FSIA exception for terrorist acts Price v. Socialist The resulting provision, 28 U.S.C. § 1605(a)(7) is a government that has repeatedly provided support for acts of international terrorism . . . 28 U.S.C. § 1605A. On January 28, 2008, while this appeal was pending, the Terrorism Exception was superseded and replaced. See Pub. L. No. 110-181 (2008). The panel solicited and the parties provided letter briefs addressing what impact, if any, this change in the law has on this case. 44 1 (repealed 2008) bore notable features which reveal the 2 delicate legislative compromise out of which it was born, 3 the primary one being that it applied only to designated 4 state sponsors of terrorism. 5 Terrorism Exception in 2008, that limitation was preserved. 6 28 U.S.C. § 1605A(a)(2)(A)(i)(I) (requiring that the foreign 7 state have been designated as a state sponsor of terrorism 8 by the State Department ). 9 Id. When Congress amended the The State Department has never designated the Kingdom a 10 state sponsor of terrorism. 11 Exception is inapplicable here. 12 otherwise. 13 conduct alleged amounts to terrorism within the meaning of 14 the Terrorism Exception would evade and frustrate that key 15 limitation on the Terrorism Exception. 16 As a consequence, the Terrorism No plaintiff argues But to apply the Torts Exception where the By definition, the acts listed in the Terrorism 17 Exception are torts. 18 terrorist acts and thus encompassed the conduct set forth in 19 the Terrorism Exception, there would be no need for 20 plaintiffs ever to rely on the Terrorism Exception when 21 filing suit. 22 foreign state be designated a state sponsor of terrorism-- If the Torts Exception covered An important procedural safeguard--that the 45 1 would in effect be vitiated. 2 in a way that would deprive the Terrorism Exception (or its 3 limitations) of meaning. 4 404 (2000) ( It is . . . a cardinal principle of statutory 5 construction that we must give effect, if possible, to every 6 clause and word of a statute. (internal citation and 7 quotation marks omitted)). 8 its purpose, its exceptions must be separately administered. 9 We and our sister circuits have repeatedly rejected We decline to read the statute Williams v. Taylor, 529 U.S. 362, To assure that the FSIA serves 10 efforts to shoehorn a claim properly brought under one 11 exception into another. 12 Poland, 440 F.3d 579, 588 (2d Cir. 2006) (declining to 13 credit plaintiffs invocation of the Commercial Activities 14 Exception, which simply recharacterize[d] plaintiffs 15 takings argument ); Chuidian, 912 F.2d at 1106 ( To hold 16 otherwise would be to allow plaintiffs to escape the 17 requirements of section 1605(a)(3) through artful 18 recharacterization of their takings claims. ); De Sanchez v. 19 Banco Cent. de Nicaragua, 770 F.2d 1385, 1399 (5th Cir. 20 1985) ( Because [the plaintiff s] claim for conversion is in 21 essence a property rather than a tort claim, we hold that 22 [the Torts Exception] does not apply. ); Alberti v. Empresa See, e.g., Garb v. Republic of 46 1 Nicaraguense De La Carne, 705 F.2d 250, 254 (7th Cir. 1983) 2 ( The basis of this lawsuit is the nationalization of 3 Empacadora, which is a quintessential Government act. 4 Plaintiffs cannot transform this governmental dispute into a 5 commercial dispute through the simple expedient of 6 attempting to offset an unrelated commercial debt. 7 (internal citations omitted)). 8 9 Plaintiffs textual argument focuses on the feature of the Torts Exception that reinstates foreign sovereign 10 immunity for a particular class of torts: malicious 11 prosecution, abuse of process, libel, slander, 12 misrepresentation, deceit and interference with contract 13 rights. 14 that if Congress intended to do the same for torture, 15 extrajudicial killing, aircraft sabotage, hostage taking, or 16 the provision of material support or resources, 28 U.S.C. § 17 1605A, it could have done so explicitly. 18 United States, 464 U.S. 16, 23 (1983). 19 Exception applies in any case not otherwise covered by this 20 chapter. 21 Terrorism Exception stands alone. 22 considered torts for the purposes of the Torts Exception, 28 U.S.C. § 1605(a)(5)(B). 28 U.S.C. § 1605A(a)(1). 47 The plaintiffs contend Cf. Russello v. But the Terrorism In other words, the If acts of terrorism are 1 then any claim that could be brought under the Terrorism 2 Exception could also be brought under the Torts Exception. 3 If this were so, the Terrorism Exception would be drained of 4 all force because every potential case would be otherwise 5 covered by this chapter --namely, the Torts Exception. 6 claims based on terrorism must be brought under the 7 Terrorism Exception, and not under any other FSIA exception. 8 9 So, The plaintiffs predict that several untoward consequences will flow from reading the Torts Exception not 10 to cover their claims. 11 remedied by the amended version of the Terrorism Exception, 12 as explained in the margin.14 13 at stake here: civil liability. 14 immune to civil claims brought by the victims of its alleged 15 wrongdoing does not mean it has unfettered discretion to Some of these concerns have been The remainder overlook what is 14 That a foreign sovereign is For instance, the Vigilant Plaintiffs protested that the prior version of the Terrorism Exception would leave those who suffered property damage without means of recovery. The amended version solves that problem--it provides federal jurisdiction and a private cause of action for reasonably foreseeable property loss, whether insured or uninsured, third party liability, and loss claims under life and property insurance policies as a consequence of state-sponsored terrorism. 28 U.S.C. § 1605A(d). Moreover, the amended version of the Terrorism Exception expands the class of claimants beyond United States nationals to members of our armed forces and employees of our government. 28 U.S.C. § 1605A(a)(2)(A) (i)(II), (III). 48 1 commit atrocities against United States nationals. 2 Deterrence (or punishment) does not begin and end with civil 3 litigation brought by individual plaintiffs. 4 has other means at its disposal--sanctions, trade embargos, 5 diplomacy, military action--to achieve its foreign policy 6 goals and to deter (or punish) foreign sovereigns. 7 the FSIA did open an avenue of redress for certain 8 individual victims of state-sponsored terrorism, it did not 9 delegate to the victims, their counsel and the courts the 10 responsibility of the executive branch to make America s 11 foreign policy response to acts of terrorism committed by a 12 foreign state, including whether federal courts may 13 entertain a victim s claim for damages. 14 15 Our government Although We therefore hold that the Torts Exception does not apply here.15 16 15 The defendants raise three other challenges to the application of the Torts Exception: since the Torts Exception is limited to torts that are both committed and felt within the United States, it does not concern a tortious act committed abroad, even if it has effects on United States soil; the discretionary function exclusion to the Torts Exception reinstates sovereign immunity; and, for lack of causation, the plaintiffs fail to state a claim in tort in any event. Because we hold that the Torts Exception does not apply to the plaintiffs allegations, it is unnecessary to reach these additional arguments. 49 1 V 2 The Federal Plaintiffs characterize the defendants 3 charitable contributions as a form of money laundering, 4 argue that money laundering is commercial in nature, and ask 5 us to conclude that the Commercial Activities Exception 6 defeats the defendants immunity for harm caused by their 7 charitable contributions. 8 inapplicable the Torts Exception likewise defeats this 9 argument. See Part IV. The same analysis that renders Moreover, existing authorities make 10 clear that the Commercial Activities Exception does not 11 apply here. 12 13 The FSIA s Commercial Activities Exception defeats foreign sovereign immunity in cases 14 15 16 17 18 19 20 21 22 23 24 25 28 U.S.C. § 1605(a)(2). 26 a regular course of commercial conduct or a particular 27 commercial transaction or act. 28 next sentence advises that the commercial character of an in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. Commercial activity is defined as 50 28 U.S.C. § 1603(d). The 1 activity shall be determined by reference to the nature of 2 the course of conduct or particular transaction or act, 3 rather than by reference to its purpose. 4 Court has criticized the circularity of this definition, 5 which Id. The Supreme 6 7 8 9 10 11 12 13 14 15 16 17 Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612 18 (1992). 19 (1993) ( If this is a definition, it is one distinguished 20 only by its diffidence. ). 21 leaves the critical term commercial largely undefined: The first sentence simply establishes that the commercial nature of an activity does not depend upon whether it is a single act or a regular course of conduct; and the second sentence merely specifies what element of the conduct determines commerciality (i.e., nature rather than purpose), but still without saying what commercial means. See also Saudi Arabia v. Nelson, 507 U.S. 349, 359 Happily, the FSIA was not written on a clean slate. 22 Weltover, 504 U.S. at 612. 23 restrictive theory of foreign sovereign immunity used by 24 the State Department between 1952 and the passage of the 25 FSIA in 1976. 26 Court explained (without disagreement from the dissenters) 27 that [i]n their commercial capacities, foreign governments 28 do not exercise powers peculiar to sovereigns. Rather, it codified the In a case decided in that era, the Supreme 51 Instead, 1 they exercise only those powers that can also be exercised 2 by private citizens. 3 Republic of Cuba, 425 U.S. 682, 704 (1976). 4 Court adhered to this standard in construing the FSIA: 5 [W]hen a foreign government acts, not as regulator of a 6 market, but in the manner of a private player within it, the 7 foreign sovereign s actions are commercial within the 8 meaning of the FSIA. 9 Letelier v. Republic of Chile, 748 F.2d 790, 796, 797 (2d Alfred Dunhill of London, Inc. v. The Supreme Weltover, 504 U.S. at 614; see also 10 Cir. 1984) ( Letelier II ) (inquiring into whether the 11 activity is of the type an individual would customarily 12 carry on for profit, or that of a merchant in the 13 marketplace ). The FSIA asks 14 15 16 17 18 19 20 21 22 23 Weltover, 504 U.S. at 614 (citing Black s Law Dictionary 270 24 (6th ed. 1990)). 25 exchange is a sovereign activity . . . whereas a contract to 26 buy army boots or even bullets is a commercial activity, 27 because private companies can similarly use sales contracts not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in trade and traffic or commerce. So, regulation of foreign currency 52 1 to acquire goods. 2 foreign state s exercise of the power of its police has long 3 been understood for purposes of the restrictive theory as 4 peculiarly sovereign in nature, because [e]xercise of the 5 powers of police and penal officers is not the sort of 6 action by which private parties can engage in commerce. 16 7 Nelson, 507 U.S. at 361-62. 8 Id. at 614-15. In the same way, a With this distinction in mind, our first task is to 9 identify what particular conduct in this case is relevant. 10 Texas Trading & Milling Corp. v. Fed. Republic of Nigeria, 11 647 F.2d 300, 308 (2d Cir. 1981); see also Nelson, 507 U.S. 12 at 356 ( We begin our analysis by identifying the particular 13 conduct on which the [plaintiffs ] action is based for 16 The House Report provides additional examples: [A] contract by a foreign government . . . to construct a government building . . . [or] to make repairs on an embassy building . . . should be considered to be commercial contracts, even if their ultimate object is to further a public function. By contrast, a foreign state s mere participation in a foreign assistance program administered by the Agency for International Development (AID) is an activity whose essential nature is public or governmental, and it would not itself constitute a commercial activity. House Report at 16. 53 1 purposes of the Act. ). 2 what they term the sovereign defendants money laundering 3 activities on behalf of al Qa[e]da, and argue that the law 4 draws no bright line between commercial activities that 5 are legitimate and those that are criminal. 6 the Federal Plaintiffs argument to be as follows: the 7 defendants donated money to charities with the intent that 8 it be funneled to terrorist organizations which, in turn, 9 would use that money to purchase the plane tickets, The Federal Plaintiffs focus on We understand 10 communications devices and weapons necessary to orchestrate 11 the September 11 attacks. 12 This argument fails because it goes to purpose, the 13 very fact the Act renders irrelevant to the question of an 14 activity s commercial character. 15 It does not matter that the defendants made (and oversaw) 16 donations to charities with a specific intent as to where 17 those donations would end up. 18 giving away money--is not a commercial activity. 19 donating to charities is among those powers that can also 20 be exercised by private citizens, Alfred Dunhill, 425 U.S. 21 at 704,--unlike (say) participation in a foreign assistance 22 program administered by the Agency for International Nelson, 507 U.S. at 363. The alleged conduct itself-- 54 Granted, 1 Development . . . whose essential nature is public or 2 governmental, House Report at 16. 3 Commercial Activities Exception is not just whether the act 4 was public (jure imperii) or private (jure gestionis); it 5 also matters whether the particular actions that the 6 foreign state performs (whatever the motive behind them) are 7 the type of actions by which a private party engages in 8 trade and traffic or commerce. 9 614. But inquiry under the Weltover, 504 U.S. at In this context, the Four Princes donations to 10 charity are not part of the trade and commerce engaged in by 11 a merchant in the marketplace. 12 796. 13 not apply.17 Letelier II, 748 F.2d at Consequently, the Commercial Activities Exception does 14 15 VI 16 The remaining issue is the district court s personal 17 jurisdiction over the Four Princes in their personal 18 capacities, and over Prince Mohamed (who is sued in no other 17 As we conclude that the defendants conduct falls outside the FSIA s definition of commercial activity, we need not consider whether a criminal act (e.g., money laundering) can ever be considered commercial for purposes of the FSIA. 55 1 capacity). 2 these individuals have certain minimum contacts with [the 3 United States] such that the maintenance of the suit does 4 not offend traditional notions of fair play and substantial 5 justice. 6 (1945) (internal quotation marks omitted). 7 Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 8 779, 784 (2d Cir. 1999) (where the defendants have moved to 9 dismiss for lack of personal jurisdiction, the plaintiff The plaintiffs have the burden of showing that Int l Shoe Co. v. Washington, 326 U.S. 310, 316 See Bank 10 bears the burden of establishing that the court has 11 jurisdiction over the defendant ); Metro. Life Ins. Co. v. 12 Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996) 13 (same). 14 burden, we will not draw argumentative inferences in the 15 plaintiff s favor. 16 Corp., 21 F.3d 502, 507 (2d Cir. 1994) (quoting Atl. Mut. 17 Ins. Co. v. Balfour Maclaine Int l Ltd., 968 F.2d 196, 198 18 (2d Cir. 1992)). 19 true a legal conclusion couched as a factual allegation. 20 Jazini v. Nissan Motor Corp., 148 F.3d 181, 185 (2d Cir. 21 1998) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). 22 In determining whether a plaintiff has met this Robinson v. Overseas Military Sales Moreover, we are not bound to accept as Due process mandates that a defendant s conduct and 56 1 connection with the forum State are such that he should 2 reasonably anticipate being haled into court there. 3 Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). 4 The fair warning requirement is satisfied if the 5 defendant has purposefully directed his activities at 6 residents of the forum, and the litigation results from 7 alleged injuries that arise out of or relate to those 8 activities. 9 472-73 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465 World- Burger King Corp. v. Rudzewicz, 471 U.S. 462, 10 U.S. 770, 774 (1984) and Helicopteros Nacionales de 11 Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). 12 differently, personal jurisdiction is proper where the 13 defendant took intentional, and allegedly tortious, actions 14 . . . expressly aimed at the forum state. 15 465 U.S. 783, 789 (1984); see also In re Magnetic Audiotape 16 Antitrust Litig., 334 F.3d 204, 208 (2d Cir. 2003) (citing 17 Calder for proposition that a court may exercise personal 18 jurisdiction over defendant consistent with due process when 19 defendant is a primary participant in intentional 20 wrongdoing--albeit extraterritorially--expressly directed at 21 forum ). 22 insufficient. Put Calder v. Jones, Mere foreseeability of harm in the forum state is Burger King, 471 U.S. at 474. 57 1 2 A 3 The plaintiffs rely on five opinions from other 4 circuits for the idea that the Four Princes alleged 5 involvement in a terrorist attack on a citizen of the United 6 States constitutes purposeful direction at this forum, such 7 that [they] should reasonably anticipate being haled into 8 court here. 9 all addressed defendants who were primary participants in Burger King, 471 U.S. at 474. But those cases 10 terrorist acts. 11 Cir. 2005), the court exercised personal jurisdiction over 12 al Qaeda and Osama bin Laden for injuries arising out of the 13 bombing of our embassies in Kenya and Tanzania, reasoning 14 that their decision to purposefully direct their terror at 15 the United States, and the fact that the plaintiffs 16 injuries arose out of one of those terrorist activities, 17 should suffice to cause the defendants to reasonably 18 anticipate being haled into an American court. 19 (quoting Burger King, 471 U.S. at 474). 20 defendant in Morris v. Khadr, 415 F. Supp. 2d 1323 (D. Utah 21 2006), was an al Qaeda member who actively participated in 22 and helped plan al Qaeda s terrorist agenda--so much so, in In Mwani v. bin Laden, 417 F.3d 1 (D.C. 58 Id. at 14 Similarly, the 1 fact, that he convinced his son to risk his life and attack 2 American soldiers in Afghanistan, killing the plaintiffs 3 relatives in the course of engagement. 4 other cases dealt with civil claims against Libya (a 5 designated state sponsor of terrorism) and its intelligence 6 service for the bombing of commercial airplanes. 7 Socialist People s Libyan Arab Jamahiriya, 290 F. Supp. 2d 8 54, 59 (D.D.C. 2003) ( [T]he individual defendants . . . 9 conspired to sabotage and succeeded in destroying a civilian Id. at 1336. Two Pugh v. 10 commercial aircraft filled to capacity . . . on an 11 international flight and expected to stop in several nations 12 before reaching its final destination, [and so] the 13 individual defendants could and should have reasonably 14 postulated that passengers of many nationalities would be on 15 board, from which they could also expect they might be haled 16 into the courts of those nations whose citizens would 17 die. ); Rein v. Socialist People s Libyan Arab Jamahiriya, 18 995 F. Supp. 325, 330 (E.D.N.Y. 1998) ( This case concerns 19 the destruction [by Libya and its agents] of a United States 20 flag aircraft, which was manufactured and ow[n]ed by United 21 States corporations, while en route to the United States on 22 a regularly scheduled flight with 189 United States 59 1 nationals on board. ). 2 Iraq, 97 F. Supp. 2d 38 (D.D.C. 2000), the court exercised 3 jurisdiction over Iraq (then designated a state sponsor of 4 terrorism) for conduct within the Terrorism Exception. 5 court reasoned that the abuse of the American plaintiffs 6 had a direct effect in the United States and was 7 consciously designed to affect United States policy. 8 the circumstances, Iraq cannot now claim surprise at the 9 assertion of jurisdiction by this Court over claims brought 10 Finally, in Daliberti v. Republic of in response to its actions. The Under Id. at 54. 11 The plaintiffs do not allege that the Four Princes 12 directed the September 11 attacks or commanded an agent (or 13 authorized al Qaeda) to commit them. 14 at 790 (affirming that court could exercise personal over 15 primary participants in an alleged wrongdoing intentionally 16 directed at a California resident (emphasis added)). 17 Rather, the plaintiffs rely on a causal chain to argue a 18 concerted action theory of liability: the Princes supported 19 Muslim charities knowing that their money would be diverted 20 to al Qaeda, which then used the money to finance the 21 September 11 attacks. 22 472, 478 (D.C. Cir. 1983) (distinguishing between civil Cf. Calder, 465 U.S. Cf. Halberstam v. Welch, 705 F.2d 60 1 conspiracy and aiding-abetting liability under the common 2 law of torts); Boim v. Quranic Literacy Inst., 291 F.3d 3 1000, 1028 (7th Cir. 2002) (defining extent to which 4 charities alleged provision of material support to Hamas 5 constituted an act of international terrorism such that 6 charities could be civilly liable for injuries caused by 7 Hamas). 8 9 Even if the Four Princes were reckless in monitoring how their donations were spent, or could and did foresee 10 that recipients of their donations would attack targets in 11 the United States, that would be insufficient to ground the 12 exercise of personal jurisdiction. 13 U.S. at 474 ( Although it has been argued that 14 foreseeability of causing injury in another State should be 15 sufficient to establish such contacts there when policy 16 considerations so require, the Court has consistently held 17 that this kind of foreseeability is not a sufficient 18 benchmark for exercising personal jurisdiction. (internal 19 footnote omitted)). 20 of showing that the Four Princes engaged in intentional, 21 and allegedly tortious, actions . . . expressly aimed at 22 residents of the United States. See Burger King, 471 Rather, the plaintiffs have the burden 61 Calder, 465 U.S. at 789. 1 That burden is not satisfied by the allegation that the 2 Four Princes intended to fund al Qaeda through their 3 donations to Muslim charities. 4 Princes were aware of Osama bin Laden s public announcements 5 of jihad against the United States and al Qaeda s attacks on 6 the African embassies and U.S.S. Cole, their contacts with 7 the United States would remain far too attenuated to 8 establish personal jurisdiction in American courts. 9 be the case that acts of violence committed against Even assuming that the Four It may 10 residents of the United States were a foreseeable 11 consequence of the princes alleged indirect funding of al 12 Qaeda, but foreseeability is not the standard for 13 recognizing personal jurisdiction. 14 must establish that the Four Princes expressly aimed 15 intentional tortious acts at residents of the United States. 16 Calder, 465 U.S. at 789. 17 organization that was openly hostile to the United States 18 does not constitute this type of intentional conduct. 19 the absence of such a showing, American courts lacked 20 personal jurisdiction over the Four Princes. Rather, the plaintiffs Providing indirect funding to an 21 22 62 In 1 2 B It is alleged that in his capacity as an executive of 3 various private banks, Prince Mohamed knowingly and 4 intentionally provided material support to terrorists who, 5 in turn, planned to attack the United States. 6 allegations are as follows. 7 The Until 2002, Mohamed served as the Chairman and CEO of 8 DMI, a bank headquartered in Switzerland with operations 9 throughout the world. DMI has actively sponsored and 10 supported the al Qa[e]da movement through several of its 11 subsidiaries, including but not limited to the Islamic 12 Investment Company of the Gulf, the Faisal Islamic Bank of 13 Bahrain, Faisal Finance, Tadamon Islamic Bank, and Al Shamal 14 Islamic Bank. 15 the principle under Islamic law that prohibits the earning 16 or payment of interest. 17 draw a reasonable inference that because of sharia, there 18 exists an active, not passive, relationship among an 19 Islamic bank, its owners, and its large depositors. 20 other words, the owners of DMI and its subsidiaries are 21 close business partners with bank customers in a 22 partnership or collaboration to manage and invest customers DMI and its subsidiaries conform to sharia, The plaintiffs ask the Court to 63 In 1 capital in a mutually beneficial way. 2 bodyguard, and other al Qaeda operatives had deposits with 3 DMI and its subsidiaries. 4 $50 million in one of DMI s subsidiaries.) 5 the plaintiffs, the September 11 attacks were a direct 6 result of the material support that Prince Mohamed . . . 7 provided al Qaeda. 8 9 Osama bin Laden, his (Also, bin Laden himself invested Therefore, argue Mohamed disputes this characterization of sharia banking; but even assuming its accuracy, it does not reflect 10 that Mohamed engaged in intentional conduct expressly 11 aimed at the United States. 12 may be that, but for access to financial institutions, al 13 Qaeda could not have funded its terrorist attacks. 14 does not mean that the managers of those financial 15 institutions purposefully directed their activities at 16 residents of [this] forum. 17 Moreover, Mohamed himself was never a director, officer, 18 shareholder or employee of the banks that purportedly held 19 terrorists deposits. 20 only insofar as the Faisal Islamic Bank of Bahrain (which he 21 once managed) invested in them. 22 explained above, we decline to read Mwani, Morris, Pugh, Calder, 465 U.S. at 789. It But that Burger King, 471 U.S. at 472. He is related to those institutions 64 For the same reasons 1 Daliberti and Rein, supra, to say that the provision of 2 financial services to an entity that carries out a terrorist 3 attack on United States citizens could make Prince Mohamed, 4 in the circumstances presented here, subject to the 5 jurisdiction of American courts. 6 The Ashton Plaintiffs argue in passing that we can 7 impute the banks actions to Mohamed, subjecting him to 8 personal jurisdiction in the United States. 9 relies on Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460 This argument 10 (1988), which held that the fiduciary shield doctrine does 11 not defeat personal jurisdiction under New York s long-arm 12 statute. 13 it unfair to subject a corporate employee personally to 14 suit in a foreign jurisdiction when his only contacts with 15 that jurisdiction have been undertaken on behalf of his 16 corporate employer. 17 N.A. v. Miller, 664 F.2d 899, 902 n.3 (2d Cir. 1981) ( The 18 fiduciary shield doctrine is not a constitutional principle, 19 but is rather a doctrine based on judicial inference as to 20 the intended scope of the long arm statute. ). 21 Consequently, jurisdiction was held proper in Kreutter over 22 an individual who, as a primary actor, represented two Id. at 472. The fiduciary shield doctrine deems Id. at 467-68; Marine Midland Bank, 65 1 corporations during their participation in purposeful 2 corporate acts in the state. 3 Kreutter, 712 N.Y.2d at 470. Kreutter is plainly inapposite. There is no allegation 4 that Mohamed served as the primary actor or 5 representative of a foreign corporation that transacted 6 business within the United States. 7 Plaintiffs allege that Mohamed was the primary actor who 8 ran, directed or controlled various banks in the Kingdom, 9 Switzerland and the Sudan. Instead, the Ashton It may be that Mohamed was a 10 primary actor with regard to the operations of certain 11 foreign banks that conducted business with al Qaeda. 12 However, none of those business dealings are alleged to have 13 taken place in the United States -unlike the purposeful 14 corporate acts that took place in New York in Kreutter. 15 N.Y. 2d at 470. 16 allegedly supervised had no direct contact with the United 17 States, Mohamed was not a primary actor in any transaction 18 that would cause him to be subject to the jurisdiction of 19 American courts pursuant to Kreutter. 20 21 71 Because the transactions that Mohamed We affirm the district court s dismissal of all claims against Mohamed for lack of personal jurisdiction. 22 66 1 2 C The plaintiffs challenge the district court s denial of 3 their motions for jurisdictional discovery. 4 [Plaintiffs] did not establish a prima facie case that the 5 district court had jurisdiction over [the defendants], the 6 district court did not err in denying discovery on that 7 issue. Jazini, 148 F.3d at 186. 8 9 10 CONCLUSION For the foregoing reasons, we affirm. 67 Since

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.