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12-1318-cv(L) al. Terrorist Attacks September 11, 2001 (Kingdom Saudi Arabia al.) UNITED STATES COURT APPEALS FOR THE SECOND CIRCUIT _______________ August Term, 2012 (Argued: March 20, 2013 Decided: December 19, 2013) Docket Nos. 12-1318-cv(L), 12-1350-cv(CON), 12-1441-cv(CON), 12-1476-cv(CON), 12-1477-cv(CON), 12-1519-cv(CON) _______________ TERRORIST ATTACKS SEPTEMBER 11, 2001 (KINGDOM SAUDI ARABIA AL.) FEDERAL INSURANCE COMPANY AL. Plaintiffs-Appellants, KINGDOM SAUDI ARABIA, SAUDI HIGH COMMISSION FOR RELIEF BOSNIA AND HERZEGOVINA Defendants-Appellees.* _______________ Before: WINTER, CABRANES, AND STRAUB, Circuit Judges. The Clerk Court directed amend the caption this case conform the listing the parties shown above. _______________ Appeal from order the United States District Court for the Southern District New York (George Daniels, Judge) denying the plaintiffs Rule 60(b) motion reopen the District Court judgment dismissing sovereign defendants pursuant the Foreign Sovereign Immunities Act. hold that the District Court decision rested error law and that the motion should have been granted. Accordingly, REVERSE the order denying the Rule 60(b) motion and REMAND the District Court for further proceedings consistent with this opinion. _______________ STEPHEN COZEN (Elliot Feldman, Sean Carter, Cozen Connor, Philadelphia, PA; Ronald Motley, Robert Haefele, Jodi Flowers, Motley Rice LLC, Mount Pleasant, SC; Carter Phillips, Richard Klingler, Sidley Austin LLP, Washington, DC; Andrea Bierstein, Hanly Conroy Bierstein Sheridan Fisher Hayes, LLP, New York, NY; Robert Kaplan, Ferber Chan Essner Coller, LLP, New York, NY; Jerry Goldman, Anderson Kill Olick, P.C., New York, NY; Chris Leonardo, Adams Holcomb LLP, Washington, DC, the brief), Cozen Connor, Philadelphia, PA, for PlaintiffsAppellants. MICHAEL KELLOGG (Gregory Rapawy, Brendan Crimmins, William Rinner, the brief), Kellogg, Huber, Hansen, Todd, Evans Figel, PLLC, Washington, DC, for Defendant-Appellee Kingdom Saudi Arabia. Lawrence Robbins, Roy Englert, Jr., Robbins, Russell, Englert, Orseck, Untereiner Sauber LLP, Washington, DC, for Defendant-Appellee Saudi High Commission for Relief Bosnia and Herzegovina. _______________ STRAUB, Circuit Judge: This tale two cases: Doe Bin Laden and the case now before us, Terrorist Attacks September 11, 2001 Terrorist Attacks both cases, the plaintiffs sought damages for injuries deaths caused the September 11, 2001 terrorist attacks. both cases, the plaintiffs sued defendants who argued that they were immune from suit under the Foreign Sovereign Immunities Act. both cases, the plaintiffs contended that the statute tort exception sovereign immunity applied. Terrorist Attacks, ruled that the existence the terrorism exception sovereign immunity precluded the availability the tort exception when the alleged tort was act terrorism. Three years later, Bin Laden, overruled that conclusion mini-en banc. held that even the tort act terrorism, the tort exception available when the terrorism exception inapplicable. The Terrorist Attacks plaintiffs moved for relief from judgment under Rule 60(b) order appeal the District Court alternative ground for finding sovereign immunity ground that declined reach our prior opinion. The District Court (George Daniels, Judge) denied the motion under the impression that would able consider that unreviewed issue appeal from the denial. But cannot. conclude that this was error law and that extraordinary circumstances exist warranting relief under Rule 60(b). For this reason, REVERSE the order denying the Rule 60(b) motion and REMAND the District Court for further proceedings consistent with this opinion. BACKGROUND The factual background this multi-district litigation has been discussed detail several our opinions. See Terrorist Attacks (Asat Trust Reg. 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 the September 11, 2001 terrorist attacks: those who suffered personal injuries, the families and representatives those who died, insurers and property owners. Terrorist There have been many decisions concerning Terrorist Attacks. The three most frequently mentioned this opinion are Terrorist Attacks 349 Supp. 765 (S.D.N.Y. 2005); Terrorist Attacks II, 392 Supp. 539 (S.D.N.Y. 2005); and the Second Circuit opinion addressing the appeal from those two decisions: Terrorist Attacks III, 538 F.3d (2d Cir. 2008), overruled Doe Bin Laden, 663 F.3d 64, n.10 (2d Cir. 2011) (per curiam). The late Judge Richard Conway Casey decided Terrorist Attacks and II. The case was then reassigned Judge George Daniels, who issued the ruling below. Attacks III, 538 F.3d 75. The defendants subject this appeal are the Kingdom Saudi Arabia Kingdom and the Saudi High Commission for Relief Bosnia and Herzegovina SHC The issues before primarily involve the case procedural history. The Kingdom and the SHC moved dismiss the claims against them the ground that they were immune from suit under the Foreign Sovereign Immunities Act, U.S.C. 1330, 1602 seq. See Terrorist Attacks 349 Supp. 802-04 (Kingdom); Terrorist Attacks II, 392 Supp. 551-53 (SHC). The District Court concluded that both the Kingdom and the SHC fell within the statutory definition foreign states, which under the statute are generally immune from the jurisdiction the courts the United States. U.S.C. 1604; see Terrorist Attacks 349 Supp. 802 (Kingdom); Terrorist Attacks II, 392 Supp. 553 (SHC). There are, however, exceptions this immunity, including terrorism exception and tort exception. See U.S.C. 1605(a)(5), 1605A. But the statute gets more complicated. There discretionary function limitation the tort exception: the tort exception does not apply claims based the performance of, failure perform, discretionary function. U.S.C. 1605(a)(5)(A). The District Court concluded that the plaintiffs claims fell within the discretionary function limitation, and dismissed the claims against the Kingdom and the SHC. Terrorist Attacks 349 Supp. 803-04 (Kingdom); Terrorist Attacks II, 392 Supp. 555 (SHC). doing so, the court also concluded that jurisdictional discovery was unnecessary. Terrorist Attacks 349 Supp. 804 (Kingdom); Terrorist Attacks II, 392 Supp. 555 (concluding that the SHC provided undisputed evidence establishing that the discretionary function limitation applied). The plaintiffs appealed, and affirmed the District Court decision, but different grounds. Terrorist Attacks III, 538 F.3d 86-90. concluded that where claims are based acts terrorism, only the terrorism exception and not the tort exception could used lift the statute protection foreign states. Id. 90. Because ruled that the tort exception was not available the plaintiffs, never reached the issue whether the discretionary function limitation the tort exception applied. Id. n.15. After Terrorist Attacks III, reversed course Doe Bin Laden, 663 F.3d (2d Cir. 2011) (per curiam). There, the plaintiff sued Afghanistan, among other defendants, for the death his wife the September attacks. Id. 65. also argued that the defendant was not immune from suit based the tort exception. Id. For time, Bin Laden was not centralized part the Terrorist Attacks multi-district litigation. During this period, the District Court for the District Columbia concluded that the terrorism exception did not preclude use the tort exception for claims based acts terrorism. Doe Bin Laden, 580 Supp. 93, (D.D.C. 2008). reached this decision only month and half before our opposite conclusion Terrorist Attacks III. Bin Laden was later transferred the Southern District New York for centralization with Terrorist Attacks, and the appeal pending before the Court Appeals for the District Columbia was transferred us. See Bin Laden, 663 F.3d 66. appeal Bin Laden, overruled our conclusion Terrorist Attacks III that where the alleged tort act terrorism, the tort exception inapplicable. Bin Laden, 663 F.3d 70. This was done procedure have called mini-en banc. Id. n.10. Recognizing that its holding was inconsistent with Terrorist Attacks III, the Bin Laden panel circulated its opinion the members the Terrorist Attacks III panel and all the other active judges the Court. Id. judge objected the issuance the Bin Laden opinion. Id. The Bin Laden decision led inconsistent results for September attack victims. Our final word the Bin Laden plaintiff was that the tort exception was available him and that the parties should proceed with jurisdictional discovery. Our final word the Terrorist Attacks plaintiffs was that the tort exception was unavailable and that their lawsuit against Saudi Arabia and the SHC could not forward. This put the Terrorist Attacks plaintiffs awkward, not impossible bind. The reasoning behind our decision their case had been overruled. But never reviewed the District Court reason for reaching the same result that the discretionary function limitation applied. Trying find mechanism enable review the discretionary function issue, the plaintiffs moved for relief from judgment under Rule 60(b). The District Court denied the motion, concluding that opening the judgment was not necessary allow consider the merits the District Court prior application the discretionary function limitation. This timely appeal followed. DISCUSSION Rule 60(b)(6) provides that District Court may relieve party its legal representative from final judgment, order, proceeding for any reason that justifies relief. grand reservoir equitable power justice particular case. But that reservoir not bottomless. Recognizing Rule 60(b)(6) potentially sweeping reach, courts require the party seeking avail itself the Rule demonstrate that extraordinary circumstances warrant relief. Stevens Miller, 676 F.3d 62, (2d Cir. 2012) (internal citation and quotation marks omitted). review district court decision Rule 60(b) motion for abuse discretion. court abuses its discretion when (1) its decision rests error law clearly erroneous factual finding; (2) cannot found within the range permissible decisions. Johnson Univ. Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011) (per curiam) (internal citation omitted). The District Court did not recognize the plaintiffs inability seek review the discretionary function limitation issue. concluded that appeal from its denial the Rule 60(b) motion, could reach the underlying merits the decision apply that limitation. stated that panel this Court could determine whether not they have different determination with regard the sufficiency the complaint with regard Saudi Arabia assert claim provide jurisdiction Joint App 2228. That conclusion was not correct. The appeal from the denial motion vacate pursuant Rule 60(b) brings for review only the validity that denial, not the merits the underlying judgment itself. S.E.C. McNulty, 137 F.3d 732, 741 (2d Cir. 1998); see also Matarese LeFevre, 801 F.2d 98, 106 (2d Cir. 1986) appeal from order denying rule 60(b)(6) motion brings before only the denial the motion, not the merits the underlying judgment. Thus, the District Court decision rests error law. [A]s general matter, mere change decisional law does not constitute extraordinary circumstance for the purposes Rule 60(b)(6). Marrero Pichardo Ashcroft, 374 F.3d 46, (2d Cir. 2004). That general rule, however, not absolute. See id. And should not followed here. The procedural history this case produced inconsistent results between two sets plaintiffs suing for damages based the same incident. also allowed the District Court application the discretionary function limitation unreviewed. conclude that the circumstances here are extraordinary and warrant relief under Rule 60(b)(6). Properly applied Rule 60(b) strikes balance between serving the ends justice and preserving the finality judgments. Nemaizer Baker, 793 F.2d 58, (2d Cir. 1986). Whenever the law changes, parties who lost prior case because the now-altered law may feel that justice was not done. Generally, the interest finality outweighs that concern. However, the Supreme Court determined Gondeck Pan American World Airways, Inc., the interest finality outweighed the interest treating victims the same tort consistently. 382 U.S. 25, 26-27 (1965) (per curiam). that case, the Supreme Court faced petition for rehearing. Two men had been killed automobile accident outside defense base where they were employed. Id. 26. For one, Frank Gondeck, the district court set aside award made the Department Labor his survivors, and the Fifth Circuit affirmed. Id. The Supreme Court denied certiorari and denied rehearing. Id. The Fourth Circuit reached the opposite result for the other employee. Id. 27. Over three years after the original certiorari petition was denied, Gondeck petitioned the Supreme Court for rehearing again, this time successfully. See id. 26, 28. The Supreme Court noted that Gondeck survivors were the only ones who were eligible for compensation from the accident who did not receive it. Id. 27. This, according the Court, justif[ied] application the established doctrine that the interest finality litigation must yield where the interests justice would make unfair the strict application [the Court rules. Id. 26- (internal quotation marks omitted). The Court vacated its order denying certiorari and reversed the decision the Fifth Circuit. Id. 28; see also Pierce Cook Co., Inc., 518 F.2d 720, 723 (10th Cir. 1975) (en banc) (applying Gondeck the context Rule 60(b) motion). While the allegations regarding the September attacks are far more intricate than common traffic accident, the Supreme Court reasoning still applies. treated cases arising from the same incident differently. One victim suit was allowed proceed while others were not based opposite interpretations the same statutory provisions. Gondeck, the interest finality must yield the interests justice. The disparity between the Terrorist Attacks plaintiffs and the Bin Laden plaintiff particularly troubling because Bin Laden late centralization with the Terrorist Attacks multi-district litigation. That occurred nearly year after our decision Terrorist Attacks III. Had happened earlier, the Bin Laden plaintiff claims could have been resolved the same time and the same way those the other Terrorist Attacks plaintiffs. fact, the September cases were centralized part order prevent inconsistent pretrial rulings. Terrorist Attacks, 295 Supp. 1377, 1378 (J.P.M.L. 2003); see also Transfer Order Doe Bin Laden, 09-cv-7055 (S.D.N.Y. Aug. 10, 2009), ECF No. (transferring Bin Laden the Southern District New York for the same reasons the original centralization order). The disparate treatment two sets litigants suing for the same underlying tort especially anomalous where, here, the cases are ongoing the same court, yet subject different rules based this Court use the unusual mini-en banc process which one panel overrules another. For all these reasons, follow the Supreme Court guidance Gondeck and conclude that the circumstances this case are extraordinary and that relief under Rule 60(b)(6) warranted. United Airlines, Inc. Brien does not require contrary result. 588 F.3d 158 (2d Cir. 2009). Brien involved two cases which the Immigration and Naturalization Service INS imposed fines airlines for bringing non- citizens into the United States without proper documentation. Id. 161-62. the first, Air India had brought lawful permanent resident into the United States without the required reentry permit visa. Id. 164-65. Air India was fined despite the INS waiver that requirement based good cause under C.F.R. 211.1(b)(3). Id. 165. The District Court ruled that the fine was unlawful. Id. 164-67. the second, the District Court let stand fine against United Airlines for bringing non-immigrant into the country without valid passport and/or visa, even though that person qualified for waiver based unforeseen emergency under C.F.R. 212.1(g) (pre-1996). Id. 162-64. Based the second ruling, the INS moved for relief from the first under Rule 60(b)(6). Id. 167-68. The District Court granted the motion, and reversed. Id. 176. The differences between Brien and the case now before highlight why Rule 60(b)(6) relief warranted here. First, the Brien cases were based fines imposed for different incidents incidents governed different set statutes and regulations. Id. 162. The plaintiffs Terrorist Attacks and Bin Laden are all suing based single underlying tort governed the same statute. discussed above, inconsistent results for victims the same incident poses unique problem unfairness. Second, ruled Brien that the INS argument failed primarily because was based not mandatory authority from the Circuit but only persuasive authority from the district court. Id. 176. Here, the Rule 60(b) motion based two conflicting opinions this Court one overruling the other. Finally, while the INS and Air India each initially appealed the district court original decision, the parties later stipulated dismiss their appeals. noted that Rule does not allow district courts indulge party discontent over the effects its bargain, such where the party has made deliberate, strategic choice settle. Id. (internal quotation marks omitted). contrast, the Terrorist Attacks plaintiffs never made tactical decision abandon their claims. They used every avenue for appeal available them, including unsuccessful petition the Supreme Court for writ certiorari. See Federal Ins. Co. Kingdom Saudi Arabia, 557 U.S. 935 (2009) (denying petition). Yet virtue the procedural posture this case, they were never able obtain review the District Court basis for dismissing their claims. CONCLUSION Our incorrect decision Terrorist Attacks III caused disparity between the Terrorist Attacks plaintiffs and the Bin Laden plaintiff where none should ever have existed. conclude that the circumstances this case are extraordinary, warranting relief under Rule 60(b). Because cannot reach the underlying merits the judgment, will not address the plaintiffs argument that the District Court should not have applied the discretionary function limitation or, minimum, should have granted jurisdictional discovery. Nor will address the defendants arguments that the complaints should dismissed because the entire tort rule applies because the plaintiffs have not sufficiently shown causation. All these issues may considered the District Court remand. Accordingly, REVERSE the order denying the Rule 60(b) motion and REMAND the District Court for further proceedings consistent with this opinion.