Appeal from an order of the United States District Court for the District of Columbia (Roberts, J.), entered on September 30, 2008, denying without prejudice Appellant's motion to vacate entry of default and to dismiss the complaint. We AFFIRM and REMAND the case to the United States District Court for the Southern District of New York for further proceedings.
Second Circuit Court of Appeals
09-4958-cv Doe v. Bin Laden
(Argued: October 15, 2010
33 Before: KEARSE, CALABRESI, WESLEY, Circuit Judges.
Defendant-Appellant Afghanistan appeals from an order of the United States District 8 Court for the District of Columbia denying without prejudice its motion to vacate entry of default 9 and to dismiss the complaint. For the reasons explained below, we agree with the district court 10 that Plaintiff-Appellee John Doe's suit is properly considered under the noncommercial tort 11 exception to foreign sovereign immunity provided by 28 U.S.C. Â§ 1605(a)(5). Because factual 12 issues persist with respect to whether the Taliban's actions in allegedly agreeing to facilitate the 13 attacks of September 11, 2001, are properly considered to be the action of Afghanistan and as to 14 whether any such actions were "discretionary" under Â§ 1605(a)(5)(A), we remand the case for 15 jurisdictional discovery as requested by Afghanistan in the district court.
17 In January 2002, Plaintiff-Appellee John Doe*fn1 filed suit in the United States District 18 Court for the District of Columbia, in his role as executor of the estate and personal 19 representative of his wife Jane Doe, who perished in the terrorist attacks of September 11, 2001, 20 as well as in his individual capacity. His complaint brought claims, arising from the events of 21 that infamous day, of assault and battery, false imprisonment, intentional infliction of emotional 22 distress, conspiracy, wrongful death and violation of the Anti-Terrorism Act, 18 U.S.C. Â§ 2333.
23 On the conspiracy and wrongful death counts, Doe named among the defendants the 24 nation of Afghanistan. He asserted subject matter jurisdiction under the Foreign Sovereign 1 Immunities Act ("FSIA"), 28 U.S.C. Â§Â§ 1330, 1602 et seq., which provides subject matter 2 jurisdiction for lawsuits against foreign governments only when one of several enumerated 3 exceptions applies. See Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 4 (1989) (noting that the FSIA is the "sole basis for obtaining jurisdiction over a foreign state" in 5 U.S. courts). Doe rested his complaint against Afghanistan on Â§ 1605(a)(5), known as the 6 noncommercial tort exception.
7 Initially, Afghanistan did not respond to the suit, and in January 2003 the clerk of the 8 district court entered a default against it. In February 2004, Afghanistan moved to vacate the 9 entry of default and to dismiss the complaint against it for lack of subject matter jurisdiction. It 10 argued that claims like Doe's, predicated on terrorist acts, can only be brought under the 11 terrorism exception, Â§ 1605A. That exception is not available against Afghanistan, all agree, 12 because the State Department has not designated Afghanistan as a state sponsor of terrorism.*fn2
13 In September 2008, the district court denied without prejudice the motion to vacate and 14 dismiss, concluding that Doe's suit was properly cognizable under the noncommercial tort 15 exception rather than the terrorism exception. The court concluded, however, that a definitive 16 ruling on the existence of subject matter jurisdiction could not yet be made because two factual 1 disputes remained: (a) whether the Taliban acted as the nation of Afghanistan when it allegedly 2 entered the conspiracy alleged in the complaint and (b) whether any such action was 3 "discretionary" within the meaning of Â§ 1605(a)(5)(A). Doe v. Bin Laden, 580 F. Supp. 2d 93, 4 99 (D.D.C. 2008). The court therefore directed the parties to prepare for jurisdictional discovery, 5 as Afghanistan had requested if its motion to dismiss were denied.
6 But rather than proceed with discovery, Afghanistan appealed the denial of its motion to 7 the Court of Appeals for the District of Columbia Circuit. In November 2009, that court 8 transferred the appeal and all pending motions to this Court. Doe v. Bin-Laden, No. 08-7117 9 (D.C. Cir. Nov. 24, 2009) (transferring the case under 28 U.S.C. Â§ 1407, which governs the 10 coordination of multi-district litigation).
12 "A district court's decision regarding subject matter jurisdiction under the FSIA is 13 reviewed for clear error as to factual findings and de novo as to legal conclusions." Swarna v. 14 Al-Awadi, 622 F.3d 123, 133 (2d Cir. 2010). The question before us now is purely a legal one: 15 whether the noncommercial tort exception ...