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Date Created:December 19, 2013

Date Uploaded to the Library:December 27, 2013

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12-1318-cv(L) al. Terrorist Attacks September 11, 2001 (Kingdom Saudi Arabia al.)
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)
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
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
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.
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.
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.
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
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.
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