Doe v. Bin Laden, et al.
Justia.com Opinion Summary: Plaintiff, in his role as executor of the estate and personal representative of his wife, who perished in the terrorist attacks of September 11, 2001, as well as in his individual capacity, filed suit alleging claims that arose from the events of that day, of assault and battery, false imprisonment, intentional infliction of emotional distress, conspiracy, wrongful death, and violation of the Anti-Terrorism Act, 18 U.S.C. 2333. Defendant subsequently appealed from an order denying without prejudice its motion to vacate entry of default and to dismiss the complaint. The court agreed with the district court that plaintiff's suit was properly considered under the noncommercial tort exception to foreign sovereign immunity provided by 28 U.S.C. 1605(a)(5). Because factual issues persisted with respect to whether the Taliban's actions in allegedly agreeing to facilitate the September 11th attacks were properly considered to be the action of Afghanistan and as to whether any such actions were "discretionary" under section 1605(a)(5)(A), the court remanded the case for jurisdictional discovery as requested by Afghanistan in the district court.
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09-4958-cv Doe v. Bin Laden 1Â 2Â 3Â 4Â 5Â 6Â 7Â 8Â 9Â 10Â 11Â 12Â 13Â 14Â 15Â 16Â 17Â 18Â 19Â 20Â 21Â 22Â 23Â 24Â 25Â 26Â 27Â 28Â 29Â 30Â 31Â 32Â 33Â 34Â UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2010 (Argued: October 15, 2010 Decided: November 7, 2011) Docket No. 09-4958-cv JOHN DOE, in his capacity as the executor of the estate of JANE DOE, in his personal capacity, and as the personal representative of JANE DOE, Plaintiff-Appellee, â€“ v. â€“ USAMA BIN LADEN, et al., Defendants, ISLAMIC EMIRATE OF AFGHANISTAN, ALSO KNOWN AS ISLAMIC STATE OF AFGHANISTAN, Defendant-Appellant. Before: KEARSE, CALABRESI, WESLEY, Circuit Judges. Appeal from an order of the United States District Court for the District of Columbia 35Â (Roberts, J.), entered on September 30, 2008, denying without prejudice Appellantâ€™s motion to 36Â vacate entry of default and to dismiss the complaint. We AFFIRM and REMAND the case to the 37Â United States District Court for the Southern District of New York for further proceedings. 38Â 39Â PAUL J. ORFANEDES, Judicial Watch, Inc., Washington, D.C., for Plaintiff-Appellee 1Â 2Â 3Â 4Â 5Â 6Â STANLEY McDERMOTT III, DLA Piper LLP (David S. Wenger, on the brief), New York, NY, for Defendant-Appellant Per Curiam: 7Â Defendant-Appellant Afghanistan appeals from an order of the United States District 8Â Court for the District of Columbia denying without prejudice its motion to vacate entry of default 9Â and to dismiss the complaint. For the reasons explained below, we agree with the district court 10Â that Plaintiff-Appellee John Doeâ€™s suit is properly considered under the noncommercial tort 11Â exception to foreign sovereign immunity provided by 28 U.S.C. Â§ 1605(a)(5). Because factual 12Â issues persist with respect to whether the Talibanâ€™s actions in allegedly agreeing to facilitate the 13Â attacks of September 11, 2001, are properly considered to be the action of Afghanistan and as to 14Â whether any such actions were â€œdiscretionaryâ€ under Â§ 1605(a)(5)(A), we remand the case for 15Â jurisdictional discovery as requested by Afghanistan in the district court. 16Â Background In January 2002, Plaintiff-Appellee John Doe1 filed suit in the United States District 17Â 18Â Court for the District of Columbia, in his role as executor of the estate and personal 19Â representative of his wife Jane Doe, who perished in the terrorist attacks of September 11, 2001, 20Â as well as in his individual capacity. His complaint brought claims, arising from the events of 21Â that infamous day, of assault and battery, false imprisonment, intentional infliction of emotional 22Â distress, conspiracy, wrongful death and violation of the Anti-Terrorism Act, 18 U.S.C. Â§ 2333. 23Â On the conspiracy and wrongful death counts, Doe named among the defendants the 24Â nation of Afghanistan. He asserted subject matter jurisdiction under the Foreign Sovereign Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 1 In December 2001, Doe moved for and was granted leave to file under a pseudonym.Â 2Â Â 1Â Immunities Act (â€œFSIAâ€), 28 U.S.C. Â§Â§ 1330, 1602 et seq., which provides subject matter 2Â jurisdiction for lawsuits against foreign governments only when one of several enumerated 3Â exceptions applies. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 4Â (1989) (noting that the FSIA is the â€œsole basis for obtaining jurisdiction over a foreign stateâ€ in 5Â U.S. courts). Doe rested his complaint against Afghanistan on Â§ 1605(a)(5), known as the 6Â noncommercial tort exception. 7Â Initially, Afghanistan did not respond to the suit, and in January 2003 the clerk of the 8Â district court entered a default against it. In February 2004, Afghanistan moved to vacate the 9Â entry of default and to dismiss the complaint against it for lack of subject matter jurisdiction. It 10Â argued that claims like Doeâ€™s, predicated on terrorist acts, can only be brought under the 11Â terrorism exception, Â§ 1605A. That exception is not available against Afghanistan, all agree, 12Â because the State Department has not designated Afghanistan as a state sponsor of terrorism.2 13Â In September 2008, the district court denied without prejudice the motion to vacate and 14Â dismiss, concluding that Doeâ€™s suit was properly cognizable under the noncommercial tort 15Â exception rather than the terrorism exception. The court concluded, however, that a definitive 16Â ruling on the existence of subject matter jurisdiction could not yet be made because two factual Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 2 The terrorism exception provides: 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. 28 U.S.C. Â§ 1605A(a)(1). The exception is only available against a nation that has been designated by the United States government as a state sponsor of terrorism at the time of the terrorist act. Â§1605A(a)(2)(A)(i)(I). Currently, only four states are so designated: Cuba, Iran, Sudan, and Syria. A list of designated states is available at http://www.state.gov/s/ct/c14151.htm (last visited October 11, 2011).Â 3Â Â 1Â disputes remained: (a) whether the Taliban acted as the nation of Afghanistan when it allegedly 2Â entered the conspiracy alleged in the complaint and (b) whether any such action was 3Â â€œdiscretionaryâ€ within the meaning of Â§ 1605(a)(5)(A). Doe v. Bin Laden, 580 F. Supp. 2d 93, 4Â 99 (D.D.C. 2008). The court therefore directed the parties to prepare for jurisdictional discovery, 5Â as Afghanistan had requested if its motion to dismiss were denied. 6Â But rather than proceed with discovery, Afghanistan appealed the denial of its motion to 7Â the Court of Appeals for the District of Columbia Circuit. In November 2009, that court 8Â transferred the appeal and all pending motions to this Court. Doe v. Bin-Laden, No. 08-7117 9Â (D.C. Cir. Nov. 24, 2009) (transferring the case under 28 U.S.C. Â§ 1407, which governs the 10Â coordination of multi-district litigation). 11Â Discussion 12Â â€œA district courtâ€™s decision regarding subject matter jurisdiction under the FSIA is 13Â reviewed for clear error as to factual findings and de novo as to legal conclusions.â€ Swarna v. 14Â Al-Awadi, 622 F.3d 123, 133 (2d Cir. 2010). The question before us now is purely a legal one: 15Â whether the noncommercial tort exception can be a basis for a suit arising from the terrorist acts 16Â of September 11, 2001. 17Â As with any question of statutory interpretation, we start with the text. Dobrova v. 18Â Holder, 607 F.3d 297, 301 (2d Cir. 2010) (â€œ[S]tatutory analysis necessarily begins with the plain 19Â meaning of a lawâ€™s text and, absent ambiguity, will generally end there.â€ (internal quotation 20Â marks omitted)). The text of the noncommercial tort exception of the FSIA provides jurisdiction 21Â for cases that (1) are noncommercial, (2) seek â€œmoney damages,â€ (3) for â€œpersonal injury or 22Â death, or damage to or loss of property,â€ (4) that â€œoccur[ed] in the United States,â€ and (5) that 4Â Â 1Â was â€œcaused by the tortious act,â€ (6) â€œof [a defendant] foreign state or [its] employee . . . acting 2Â within the scope of his . . . employment,â€ unless (7) the claim is based on a discretionary act or 3Â (8) it is for â€œmalicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or 4Â interference with contract rights.â€ 28 U.S.C. Â§ 1605(a)(5).3 There is no question that the first 5Â five requirements are present and that the last exclusion does not apply. See Doe, 580 F. Supp. 6Â 2d at 99. Specifically, there is no doubt that the terrorist acts giving rise to the harms at issueâ€” 7Â aircraft sabotage, extrajudicial killing, and conspiracy to support the sameâ€”are all torts. 8Â Additionally, the complaint alleged nondiscretionary acts by employees of the foreign state 9Â within the scope of their employment. Compl. Â¶Â¶ 21, 60â€“61. Therefore, at the pleading stage, 10Â the claim appears to fit within the noncommercial tort exception. 11Â Afghanistan, however, urges us to shun this â€œplain languageâ€ reading. It argues for a 12Â narrow reading of the noncommercial tort exception under which the later-added4 â€œterrorism 13Â exceptionâ€ acts not as an additional basis of jurisdiction but as an implicit limitation on the 14Â already-existing jurisdiction conferred by the noncommercial tort exception. Allowing the 15Â noncommercial tort exception to govern would, the argument goes, let the plaintiffs â€œshoehorn a 16Â claim properly brought under one exception into another,â€ which would violate the longstanding Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 3 More fully, the relevant provision reads: A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . [not encompassed in the commercial activities exception] 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 toâ€” (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 . . . .Â 4 Congress added the terrorism exception to the FSIA as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104â€“132, Â§ 221(a), 110 Stat. 1214, 1241â€“42 (1996).Â 5Â Â 1Â judicial tradition in FSIA cases. In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 89 2Â (2d Cir. 2008), abrogated in part on other grounds by Samantar v. Yousuf, 130 S. Ct. 2278 3Â (2010). 4Â But this conclusion can only be reached if one concludes that these claims â€œproperlyâ€ 5Â belong under the terrorism exception and no other. And that conclusion, in turn, relies on the 6Â belief that to hold otherwise would leave the terrorism exception impotent because then no case 7Â would exist that is both (a) within the ambit of the terrorism exception and (b) not â€œotherwise 8Â covered by [the FSIA].â€ 28 U.S.C. Â§ 1605A. That is, Afghanistanâ€™s argument for the narrow 9Â reading of the noncommercial tort exception rests on the factual premise that there exists no set 10Â of cases covered by the terrorism exception that fall outside the noncommercial tort exception. 11Â This premise is, however, demonstrably false. 12Â To begin with, the very language of the statute undercuts the premise. The 13Â noncommercial tort exception applies only to injuries or damages â€œoccurring in the United 14Â States.â€ 28 U.S.C. Â§ 1605(a)(5) (emphasis added). Accordingly, the noncommercial tort 15Â exception does not cover a wrongful death suit brought against a foreign state as the result of a 16Â bombing abroad. E.g., Smith v. Socialist Peopleâ€™s Libyan Arab Jamahiriya, 101 F.3d 239, 246 17Â (2d Cir. 1996) (affirming dismissal of a case against Libya for the bombing of Pan Am flight 103 18Â for lack of subject matter jurisdiction, in part, because the bombing did not occur in the United 19Â States but over Scotland and hence could not be subject to the noncommercial tort exception). In 20Â contrast, this is precisely the type of wrong the terrorism exception encompasses: under that 21Â exception, no geographic limitation applies so long as the victim is a U.S. national, member of 22Â the U.S. armed forces, or U.S. government employee. 28 U.S.C. Â§ 1605A(a)(2)(A)(ii). 6Â Â 1Â A bombing abroad killing U.S. nationals is not only a paradigmatic example of terrorism, 2Â it is the preciseâ€”and onlyâ€”example Congress cited when it originally added the terrorism 3Â exception to the FSIA.5 The report from the House Committee on the Judiciary describes 4Â Section 804 of the Comprehensive Antiterrorism Act of 19956â€”what would become the 5Â terrorism exception to the FSIAâ€”as â€œresponding to the tragedy of the Pan Am 103 bombing.â€ 6Â H.R. Rep. No. 104-383, at 62 (1995) (emphasis added).7 Clearly, the bombing of Pan Am 103 7Â over Lockerbie, Scotland by terrorists affiliated with the Libyan government was not actionable 8Â under the noncommercial tort exception because neither the bombing nor the injuries â€œoccurr[ed] 9Â in the United States.â€ Smith, 101 F.3d at 246. But it did kill U.S. nationals. And, as such, it 10Â seemed to Congress to be a wrong demanding a remedy. 11Â The history of the Pan Am 103 litigation in this very Court illustrates the work that can 12Â be done only by the terrorism exception even accepting a literal reading of the noncommercial 13Â tort exception. Applying the pre-amendment version of the FSIA, this Court correctly dismissed 14Â a suit brought by the estates of Pan Am 103 victims because the noncommercial tort exception 15Â failed to encompass the explosion occurring in Scottish airspace. Smith, 101 F.3d at 246. But Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 5 Later, in 2001, Congress amended the terrorism exception to cover a specific caseâ€”the Iran hostage crisis. See Pub. L. No. 107-77, Â§ 626(c), 115 Stat. 748, 803 (2001) (codified at 28 U.S.C. Â§ 1605A(a)(2)(B)) (the amendment attempted to abrogate the Algiers Accord, which ended the hostage crisis and prohibited suit against Iran). Again, this is an example of a case to which the terrorism exception would apply and the noncommercial tort exception would not. Â 6 The bill was later subsumed in, and became law as part of, the Antiterrorism and Effective Death Penalty Act of 1996. In 2008, Congress reorganized this section, moving the terrorism exception from 28 U.S.C. Â§ 1605(7) to Â§ 1605A with minimal substantive changes. Pub. L. No. 110â€“181, Â§ 1083(b)(1)(A) (2008).Â 7 Though Pan Am 103 was the only example given in the House committee report, Senators heard testimony from a survivor of a Nazi concentration camp, survivors of the 1985 kidnapping of faculty at American University in Beirut, and a civilian contractor who was abducted in Kuwait by Iraq during the first Gulf War, in addition to the Pan Am 103 victimsâ€™ group. Foreign Sovereign Immunities Act: Hearing on S.825 Before the Subcomm. on Courts and Admin. Practice of the S. Comm. on the Judiciary, 103d Cong. 34â€“35, 55â€“57, 67, 77, 92â€“96 (1994). All of these incidents are examples of cases to which the terrorism exception would apply (if the foreign defendant state were designated as a state sponsor of terrorism) but which were (and continue to be) unactionable under the noncommercial tort exception. Â 7Â Â 1Â after the addition of the terrorism exceptionâ€”and in the first circuit court case to apply the new 2Â exceptionâ€”a different panel allowed the refiled suit to go forward. It found that the terrorism 3Â exception supplied a new, sufficient, and constitutional source of jurisdiction over plaintiffsâ€™ 4Â wrongful death claims based on aircraft sabotage. Rein v. Socialist Peopleâ€™s Libyan Arab 5Â Jamahiriya, 162 F.3d 748, 762â€“63 (2d Cir. 1998).8 6Â All this is to say, Afghanistanâ€™s proposed narrow reading of the noncommercial tort 7Â exception would not so much be a reading of the statue as it would be a decision that the 8Â terrorism exception amounts to a partial repeal by implication of the noncommercial tort 9Â exception. Prior to the terrorism exceptionâ€™s enactment, several courts had allowed suits against 10Â foreign governments under the noncommercial tort exception for tortiousâ€”and arguably 11Â â€œterroristâ€â€”acts occurring in the United States. For example, in Liu v. Republic of China, 892 12Â F.2d 1419, 1425 (9th Cir. 1989), the Ninth Circuit allowed the widow of a man killed by 13Â Taiwanese intelligence forces in California to maintain a wrongful death action against the 14Â Taiwanese government. Similarly, in Letelier v. Republic of Chile, 488 F. Supp. 665, 674 15Â (D.D.C. 1980), the district court permitted a wrongful death suit against the Chilean government 16Â for its alleged role in a car bombing in the District of Columbia. Under the narrow reading of the 17Â noncommercial tort exception urged by Afghanistan, both these cases would now be barred 18Â (unless Taiwan and Chile were designated state sponsors of terrorism) because the alleged acts 19Â constitute extrajudicial killings, i.e., acts specifically listed in the terrorism exception.9 Were the Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 8 The Iran hostage crisis had a similar history in the D.C. Circuit, where the case was initially dismissed for want of subject matter jurisdiction and then later revived after the addition of the terrorism exception. See Roeder v. Islamic Republic of Iran, 333 F.3d 228, 230 (D.C. Cir. 2003) (recounting the history of the Iran hostage crisis litigation). Â 9 â€œ[T]he term â€˜extrajudicial killingâ€™ means a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under 8Â Â 1Â narrow reading correct, the enactment of the terrorism exception would therefore have 2Â constituted a repudiation of the then-prevailing interpretation of the noncommercial tort 3Â exception. 4Â But such an implicit repudiation runs against all canons of interpretation. â€œCongress is 5Â presumed to be aware of a judicial interpretation of a statut[ory section]â€ and partial amendment 6Â of a statute without touching the previously interpreted section â€œconstitutes an implicit adoption 7Â of [the prior] interpretation,â€ absent a clear indication to the contrary. Elkimya v. Dep't of 8Â Homeland Sec., 484 F.3d 151, 154 (2d Cir. 2007); cf. Handberry v. Thompson, 446 F.3d 335, 9Â 345 (2d Cir. 2006) (â€œâ€˜Absent a clearly established congressional intention, repeals by implication 10Â are not favored. An implied repeal will only be found where provisions in two statutes are in 11Â irreconcilable conflict, or where the latter Act covers the whole subject of the earlier one and is 12Â clearly intended as a substitute.â€™â€ (quoting Lockhart v. United States, 546 U.S. 142, 149 (2005) 13Â (internal alteration omitted))). 14Â In the debate surrounding the adoption of the terrorism exception, these prior cases were 15Â explicitly discussed, so Congress was actually, and not just presumptively, aware of their 16Â existence, yet no one even suggestedâ€”let alone arguedâ€”either that they were incorrectly 17Â decided or that the proposed amendment would overturn their reasoning. See Foreign Sovereign 18Â Immunities Act: Hearing on S.825 Before the Subcomm. on Courts and Admin. Practice of the S. 19Â Comm. on the Judiciary (â€œSenate Hearingâ€), 103d Cong. 82 (1994) (discussing these cases). 20Â 21Â In this same vein, were Afghanistanâ€™s proposed narrow reading correct, the enactment of the terrorism exception would represent a contraction rather than an expansion of jurisdiction Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â international law, is lawfully carried out under the authority of a foreign nation.â€ 28 U.S.C. Â§ 1350 note (incorporated by reference in 28 U.S.C. Â§ 1605A(h)(7)).Â 9Â Â 1Â over foreign states. The legislative history of the terrorism exception, however, suggests just the 2Â opposite. When the basic structure of the terrorism exception was first debated in Congress in 3Â 1992 and again in 1994, the House Committee Report explained that the provision was 4Â â€œnecessary to clarify and expand the circumstances in which an American . . . can bring suit in 5Â U.S. courts against a foreign government under the FSIA.â€ H.R. Rep. No. 103-702, at 3 (1994) 6Â (emphasis added); accord H.R. Rep. No. 102-900, at 3â€“4 (1992). Similarly, the report on the 7Â provision that would go on to become the terrorism exception twice explained that it would 8Â amend the FSIA to â€œgrantâ€ jurisdiction. H.R. Rep. No. 104-383, at 41, 62 (1995). Both 9Â supporters and opponents of the bill thought it would â€œexpand the [then-]present jurisdiction of 10Â [the] courtsâ€ to cover claims arising outside the United States. Senate Hearing at 2 (statement of 11Â Sen. Heflin, supporting the bill); see also id. at 86â€“87 (statement of Sen. Thurmond, opposing 12Â the bill). 13Â Additionally, and even apart from the noncommercial tort exceptionâ€™s plain text and this 14Â legislative history, application of the familiar canon of construction expressio unius est exclusio 15Â alterius to the noncommercial tort exception supports the broad reading. See Greene v. United 16Â States, 79 F.3d 1348, 1355 (2d Cir. 1996) (â€œThe ancient maxim expressio unius est exclusio 17Â alterius (mention of one impliedly excludes others) cautions us against engrafting an additional 18Â exception to what is an already complex [statute].â€). The noncommercial tort exception excludes 19Â from its scope â€œany claim arising out of malicious prosecution, abuse of process, libel, slander, 20Â misrepresentation, deceit, or interference with contract rights.â€ 28 U.S.C. Â§ 1605(a)(5)(B). 21Â Noticeably absent from this list are the torts listed in the terrorism exceptionâ€”â€œan act of torture, 22Â extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or 23Â resources for such an act.â€ 28 U.S.C. Â§ 1605A(a)(1). But, Afghanistan would have us, in effect, 10Â Â 1Â narrow the noncommercial tort exception precisely by adding these additional torts to the 2Â Â§ 1605(a)(5)(B) list of excluded torts. Had Congress wished the Â§ 1605(a)(5)(B) list to include 3Â those torts, it could easily have added them to that list itself. 4Â The text, history, and purpose of the statute make clear that the statute does not counsel a 5Â narrow reading. All this makes clear that there is a set of cases outside the scope of the 6Â noncommercial tort exception to which the terrorism exception can apply. But are there not also 7Â cases that seemingly are covered by both exceptions, and does not their existence lend some 8Â support to the narrow reading? Why would Congress create two exceptions covering the same 9Â wrong? One exception usually should take precedence over the other. 10Â There are, of course, just such overlaps. But, Congress has expressly provided in the 11Â statute for how to determine which exception dominates. It did so by limiting the terrorism 12Â exception to â€œany case not otherwise covered by [the FSIA].â€ 28 U.S.C. Â§ 1605A(a)(1). In other 13Â words, Congress expressly stated that the terrorism exception should only apply when the 14Â preexisting exceptions failed to cover a case. That means that while a plaintiff may not 15Â â€œshoehorn a claim properly brought under one exception into another,â€ In re Terrorist Attacks, 16Â 538 F.3d at 89, an explicit statutory command as to which exception rules in cases of overlap 17Â resolves the issue. The existence of the â€œnot otherwise coveredâ€ language in Â§Â 1605A(a)(1) 18Â makes pellucid beyond doubt that the terrorism exception, far from limiting the preexisting 19Â noncommercial tort exception, is there to cover some injuries that the noncommercial tort 20Â exception does not reach. Accordingly, we hold that the statutory text does not support 21Â Afghanistanâ€™s proposed narrow reading of the noncommercial tort exception, and that the 11Â Â 1Â terrorism exception, rather than limiting the jurisdiction conferred by the noncommercial tort 2Â exception, provides an additional basis for jurisdiction.10 3Â *** 4Â Let us be clear: we make no judgment as to whether the allegations in the complaint are 5Â sufficient to state a claim or even to provide jurisdiction. Indeed, the district court had ordered 6Â further discovery to provide for fact finding with regard to whether the alleged acts were 7Â attributable to Afghanistan and whether they were discretionary. Cf. In re Terrorist Attacks on 8Â September 11, 2001, 392 F. Supp. 2d 539, 555 (S.D.N.Y. 2005) (dismissing similar claims 9Â against Saudi Arabia after finding the alleged acts encompassed in the discretionary-acts 10Â exception to the noncommercial tort exception once jurisdictional discovery produced documents 11Â supporting that exception). What we decide today is simply that limited discovery to determine 12Â whether jurisdiction exists should proceed. 13Â Conclusion 14Â We AFFIRM the ruling of the district court and REMAND the case to the United States 15Â District Court for the Southern District of New York for further proceedings consistent with this 16Â opinion. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 10 We recognize that this holding is inconsistent with that reached by a different panel of our Court in In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 89 (2d Cir. 2008), abrogated in part on other grounds by Samantar v. Yousuf, 130 S. Ct. 2278 (2010). That panel, however, was presented with sparse and one-sided argument on this point in the context of a very large and complex case that focused on other aspects of the FSIA. This opinion has been circulated to the members of that panel as well as all active judges on our Court, and we have received no objection to our issuing this opinion. See Shipping Corp. of India v. Jaldhi Overseas Pte, 585 F.3d 58, 67 & n.9 (2d Cir. 2009) (explaining this â€œmini-en bancâ€ procedure).Â 12Â Â