Circuit Revives 9/11 Claims Against Saudi Arabia

, New York Law Journal

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Plaintiffs seeking to hold the Kingdom of Saudi Arabia and the Saudi High Commission for Relief of Bosnia and Herzegovina liable for the Sept. 11 attacks because of their alleged aid to al Qaida will get a second chance following a decision by the U.S. Court of Appeals for the Second Circuit. Straightening out an inconsistency in its case law on the Foreign Sovereign Immunities Act, the circuit reinstated claims and remanded the case of In re: Terrorist Attacks on Sept. 11, 2001, 12-1318-cv, to Southern District Judge George Daniels (See Profile).

In a 2008 ruling in In re Terrorist Attacks, the circuit held that only the "terrorism exception" to the Foreign Sovereign Immunities Act (FSIA) could lift a foreign state's protection under the act and the application of the act's tort exception was precluded. But the court's holding was overruled three years later by Doe v. Bin Laden, 663 F.3d 64, where the court, after conducting a procedure called a "mini-en banc" (circulating the Bin Laden opinion to the Terrorist Attacks panel and the active members of the court) held the tort exception was available to the plaintiff and that the parties could proceed with jurisdictional discovery.

This led to inconsistent results for similarly situated plaintiffs, Judge Chester Straub (See Profile) wrote Thursday, and put the plaintiffs in In re: Terrorist Attacks in an awkward position.

Daniels had ruled the plaintiffs' claims fell under the "discretionary function limitation" to the tort exception and dismissed claims against the Kingdom and the Commission. He then denied the plaintiffs' motion under Federal Rule of Civil Procedure 60(b)(6), which allows a district court to relieve a party from a final judgment for "any…reason that justifies relief," and he did so, Straub said, without recognizing "the plaintiffs' inability to seek review of the discretionary function limitation issue."

This, the circuit said Thursday was in error, with Straub writing "the circumstances of this case are extraordinary" and the court was ordering Daniels to grant relief under Rule 60(b).

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