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In re Terrorist Attacks on September 11

United States Court of Appeals, Second Circuit

December 19, 2013

In re TERRORIST ATTACKS ON SEPTEMBER 11, 2001 (Kingdom of Saudi Arabia et al.)
v.
Kingdom of Saudi Arabia, Saudi High Commission for Relief of Bosnia and Herzegovina, Defendants-Appellees.[*] Federal Insurance Company et al., Plaintiffs-Appellants,

Argued: March 20, 2013.

Page 354

Stephen A. Cozen (Elliot R. Feldman, Sean P. Carter, Cozen O'Connor, Philadelphia, PA; Ronald L. Motley, Robert T. Haefele, Jodi W. Flowers, Motley Rice LLC, Mount Pleasant, SC; Carter G. Phillips, Richard Klingler, Sidley Austin LLP, Washington, DC; Andrea Bierstein, Hanly Conroy Bierstein Sheridan Fisher & Hayes, LLP, New York, NY; Robert M. Kaplan, Ferber Chan Essner & Coller, LLP, New York, NY; Jerry S. Goldman, Anderson Kill & Olick, P.C., New York, NY; Chris Leonardo, Adams Holcomb LLP, Washington, DC, on the brief), Cozen O'Connor, Philadelphia, PA, for Plaintiffs-Appellants.

Michael K. Kellogg (Gregory G. Rapawy, Brendan J. Crimmins, William J. Rinner, on the brief), Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC, Washington, DC, for Defendant-Appellee Kingdom of Saudi Arabia.

Lawrence S. Robbins, Roy T. Englert, Jr., Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, DC, for Defendant-Appellee Saudi High Commission for Relief of Bosnia and Herzegovina.

Before: WINTER, CABRANES, AND STRAUB, Circuit Judges.

STRAUB, Circuit Judge:

This is a tale of two cases: Doe v. Bin Laden and the case now before us, In re Terrorist Attacks on September 11, 2001 (" Terrorist Attacks " ). In both cases, the plaintiffs sought damages for injuries or deaths caused by the September 11, 2001 terrorist attacks. In both cases, the plaintiffs sued defendants who argued that they were immune from suit under the Foreign Sovereign Immunities Act. In both cases, the plaintiffs contended that the statute's " tort exception" to sovereign immunity applied.

In Terrorist Attacks, we ruled that the existence of the " terrorism exception" to sovereign immunity precluded the availability of the tort exception when the alleged tort was an act of terrorism. Three years later, in Bin Laden, we overruled that conclusion by " mini-en banc." We held that even if the tort is an act of terrorism, the tort exception is available when the terrorism exception is inapplicable.

The Terrorist Attacks plaintiffs moved for relief from judgment under Rule 60(b) in order to appeal the District Court's alternative ground for finding sovereign immunity— a ground that we declined to reach in our prior opinion. The District Court (George B. Daniels, Judge ) denied the motion under the impression that we would be able to consider that unreviewed

Page 355

issue on appeal from the denial. But we cannot.

We conclude that this was an error of law and that " extraordinary circumstances" exist warranting relief under Rule 60(b). For this reason, we REVERSE the order denying the Rule 60(b) motion and REMAND to the District Court for further proceedings consistent with this opinion.

BACKGROUND

The factual background of this multi-district litigation has been discussed in detail in several of our opinions. See Terrorist Attacks (Asat Trust Reg. et al.), 714 F.3d 659, 666-73 (2d Cir.2013); Terrorist Attacks III, 538 F.3d 71, 76-79 (2d Cir.2008).[1] Briefly, the plaintiffs " are persons who incurred losses in the September 11, 2001 terrorist attacks: those who suffered personal injuries, the families and 13 representatives of those who died, insurers and property owners." Terrorist Attacks III, 538 F.3d at 75. The defendants subject to this appeal are the Kingdom of Saudi Arabia (" Kingdom" ) and the Saudi High Commission for Relief of Bosnia and Herzegovina (" SHC" ).

The issues before us primarily involve the case's procedural history. The Kingdom and the SHC moved to dismiss the claims against them on the ground that they were immune from suit under the Foreign Sovereign Immunities Act, 28 U.S.C. ยงยง 1330, 1602 et seq. See Terrorist Attacks I, 349 F.Supp.2d ...


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