Terrorism Exception to Jurisdictional Immunity in the United States
By its terms, § 1605A(c) provides a private right of action under federal law for money damages against designated foreign state sponsors of terrorism (including their political subdivisions and agencies or instrumentalities). The action may be for personal injury or death resulting from certain listed acts caused by the designated state sponsor or its officials, employees, or agents. Claimed damages may include economic damages, solatium, pain and suffering, and punitive damages.
A designated foreign state may be held to be vicariously liable for the acts of its officials, employees, or agents acting within the scope of their office, employment, or agency. Specifically, the claim must be for personal injury or death “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.”
Additional requirements must also be satisfied. The exception applies only if (i) the foreign state had been designated as a state sponsor of terrorism at the time of (or as a result of) the act in question, (ii) the claimant or victim was a U.S. national, member of the U.S. armed forces or an employee or contractor of the U.S. Government acting within the scope of employment, and (iii) when the acts in question occurred within the territory of the foreign state, that state has been given a “reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration.”
The generally accepted rule has been that, if the conduct in question constitutes “terrorism” within the scope of this exception, then none of the FSIA’s other exceptions may be applied. For example, the Second Circuit held in 2010 that although the acts listed in the terrorism exception are by definition “torts,” plaintiffs could not bring their claim under the FSIA’s non-commercial torts exception if it properly fell under the terrorism exception, since to do so would “evade and frustrate that key limitation” on the terrorism exception. Similarly, the Fifth, Seventh, and Ninth Circuits have also rejected attempts by a plaintiff to “shoehorn” a claim properly brought under one exception into another.
More recently, however, the Second Circuit has taken a different approach, holding that “the terrorism exception, rather than limiting the jurisdiction conferred by the noncommercial tort exception, provides an additional basis for jurisdiction.” In so deciding, the court focused on the fact that Congress had expressly limited the exception to “any case not otherwise covered by [the FSIA],” meaning that it was intended “to cover some injuries that the noncommercial tort exception does not reach.” The court acknowledged that its holding conflicted with the 2010 decision but said that the panel in that earlier case had been 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.” Whether the availability of a federal cause of action excludes the possibility of recovery under state law remains unclear, however. In Gates v. Syrian Arab Republic, the U.S. District Court for the District of Columbia held that “state law no longer controls the nature of the liability and damages that may be sought . . .; Congress has provided the ‘specific source of law’ for recovery.” Yet in Valore v. Islamic Republic of Iran, the same court found that “[a]lthough the FSIA terrorism exception now includes an independent federal cause of action . . . plaintiffs may still pursue claims based on law of states of the United States . . . under the FSIA terrorism exception’s jurisdiction-conferring provisions, § 1605A(a)- (b).” In another case, Wyatt v. Syrian Arab Republic, the parties were required to submit additional briefing on whether the plaintiff’s state tort claims were appropriate with respect to the new federal cause of action language in § 1605A.
Statute of limitations
Under § 1605A, there is a ten-year limitations period; the action must be brought or maintained no later than ten years after the date on which the cause of action arose or after April 24, 1996, whichever is later. This latter provision represented a significant change from the previous version of the exception, under which a number of cases were dismissed because they had been filed after the ten-year period following the acts in question.
In the majority of state-sponsored terrorism cases brought under § 1605A, neither the foreign state nor the individuals named as defendants appear or answer. However, because jurisdiction under the FSIA depends on a determination that the defendants in such cases are not entitled to immunity, the court must nonetheless determine whether the case falls within the terms of the exception and that the defendant is not entitled to immunity. Service of process must still be attempted in accordance with the methods specified in § 1608. Moreover, § 1608(e) provides that a default judgment can be entered against a foreign state only after the plaintiff “establishes his claim or right to relief by evidence that is satisfactory to the court.”
In making that determination, the court may not simply accept the plaintiff’s unsupported allegations, but must conduct further inquiry before entering judgment. It may accept as true uncontroverted evidence offered by the plaintiff and may take judicial notice of court records in related proceedings.263 Several recent decisions have addressed when and to what extent a court may take judicial notice of prior findings of fact in related proceedings before the same court.
Since default is the norm, discovery requests directed to the defendants do not typically pose problems in terrorism cases. Regarding discovery requests directed to the U.S. government, the special rules set forth in § 1605(g) remain applicable. That provision requires the court, upon request of the U.S. Attorney General, to stay any request, demand, or order for discovery on the United States that the Attorney General certifies would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action, until such time as the Attorney General advises the court that such request, demand, or order will no longer so interfere. In addition to various time limits and other limitations, § 1605(g)(4) provides that “a stay of discovery under this subsection shall constitute a bar to the granting of a motion to dismiss under rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure.”