* This text was reproduced and reformatted from the text appearing at the U.S. Court of Appeals for the Second Circuit website: (visited October 6, 2008)< http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcTlBOXDA2LTAzMTktY3Zfb3- BuLnBkZg==/06-0319-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irlb77f/6/hilite >

page 840 note 1 Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602-1611 (1976) [hereinafter FSIA].

page 840 note 2 Alien Tort Statute, 28 U.S.C § 1350 (1789), and the Torture Victim Protection Act, 28 U.S.C § 1350 (1991).

page 840 note 3 Anti Terrorism Act, 18 U.S.C. § 2331 (2005).

page 840 note 4 Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 (1970).

page 840 note 5 See In re Terrorist Attacks on September 11, 2001, 349 F.Supp. 2d 765 (S.D.N.Y. 2005); and In re Terrorist Attacks on September 11,2001,392 F. Supp. 2d 539 (S.D.N.Y., 2005).

page 840 note 6 In Re Terrorist Attacks on September 11, 2001, 538 F.3d 71 (2d Cir. 2008).

page 840 note 7 The FSIA's terrorism exception was formerly codified at 28 U.S.C. § 1605(a)(7). After the District Court had ruled, but prior to the Second Circuit's decision, that section was repealed by § 1083(b)(1)(A)(iii) of the National Defense Authorization Act, Pub. L. 110-181, 122 Stat. 341 (Jan. 28, 2008). The new provision, supplied by § 1083(a)(l) of that Act, 122 Stat. 338, (codified as amended at 28 U.S.C. § 1605A).

page 840 note 8 The statutory definition of “agency or instrumentality of a foreign state” incorporates any entity “which is an organ of a foreign state or political subdivision thereof ….” See 28 U.S.C. § 1603(b)(1).

page 840 note 9 See Filler v. Hanvit Bank, 378 F.3d 213 (2d Cir. 2004).

page 840 note 10 The tort exception is found at 28 U.S.C. § 1605(a)(5) and the commercial activities exception at 28 U.S.C. § 1605(a)(2).

page 840 note 11 538 F.3d 71, supra note 6, at 91 (quoting Letelier v. Republic of Chile, 748 F.2d 790, 796 (2nd Cir. 1984)).

page 840 note 12 349 F. Supp. 2d 765, supra note 5, at 788-89.

page 840 note 13 538 F.3d 71,supranote 6, at 75.

page 840 note 14 In particular, the court cited Velasco v. Gov't of Indonesia, 370 F.3d 392 (4th Cir. 2004); Keller v. Cent. Bank of Nigeria, 277 F.3d 811 (6th Cir. 2002); Byrd v. Corporation Forestal y Industrial de Olancho S.A., 182 F.3d 380 (5th Cir. 1999); Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020 (D.C. Cir. 1997) and Chuidian v. Philippine Nat'l Bank,912 F.2d 1095, 1101-03 (9th Cir. 1990). (The District of Columbia Circuit has more recently followed the Jungquist decision in Belhas v. Ya ' alon, 515 F.3d 1279 (D.C. Cir. 2008)). In the principal case, the Second Circuit specifically declined to follow the narrow approach adopted by the Seventh Circuit in Enahoro v. Abubakaar, 408 F.3d 877 (7th Cir. 2005), declining to read the statute as covering individuals.

page 840 note 15 See U.S. Brief for Kensington Int'l Ltd. v. Itoua, 505 F. 3d 147 (2d Cir. 2007), 2007 WL 4791408, summarizing the U.S. Statement of Interest in Matar v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007). The District Court in Matar was “unpersuaded” by the Government's contention that the FSIA does not apply to individuals and, in its place, the Court should apply the common law that was operative prior to the FSIA's enactment and instead followed Judge Casey's lead in holding that “individuals acting pursuant to their official capacity are eligible for immunity under the FSIA” 500 F. Supp. 2d at 291. In Chuidian, supra note 14, the Ninth Circuit noted that nothing in the text or legislative history of the FSIA indicates that Congress did not intend to encompass within the terms of 28 U.S.C. § 1603(b). This decision was criticized by the 7th Circuit in its Enahoro opinion.

page 840 note 16 In Re Terrorists Attacks on September 11, 2001, 538 F.3d 71 (2d Cir. 2008), petition for cert, filed, 2008 WL 4906102 (U.S. Nov. 12, 2008).

page 840 note 17 Id. at 3.

page 841 note * This text was reproduced and reformatted from the text appearing at the U.S. Court of Appeals for the Second Circuit website: (visited October 6, 2008) <http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcTlBOXDA2LTAzMTktY3Zfb3-BuLnBkZg==/06-0319-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irlb77f/6/hilite>

page 841 note † The Honorable Eric N. Vitaliano of the United States District Court for the Eastern District of New York, sitting by designation.

page 856 note 2 The Shc was named as a defendant in the complaints filed by Federal Insurance, Burnett, Ashton, Cantor, New York Marine and General Insurance Company, World Trade Center Properties and Euro Brokers.

page 856 note 3 The Kingdom is named as a defendant in the complaints filed by Federal Insurance, Vigilant, Cantor, New York Marine, O'Neill and Pacific Employers.

page 856 note 4 Princes Sultan and Turki are named as defendants in the complaints filed by Ashton, Burnett, Cantor, Continental Casualty, Euro Brokers, Federal Insurance, New York Marine and World Trade Center Properties. Princes Salman and Naif are named as defendants in the Ashton, Burnett, Cantor and Federal complaints.

page 856 note 5 [1] At a November 1994 meeting with Princes Sultan and Naif, French Interior Minister Charles Pasqua “raised the question of financial aid furnished by Saudi charitable organizations enjoying state support, in particular the World Islamic League, to Islamist movements or terrorist groups … insofar as the Islamist groups receiving this aid were likely to damage French interests or had already done so in the past“; [2] at a 1999 meeting between U.S. representatives and the “Finance Ministry, intelligence, and law enforcement officials in Saudi Arabia,” the United States put Saudi Arabia and the United Arab Emirates on notice of its intent to apply “pressure to deal effectively with those who fund terrorism,” and soon thereafter, Sultan visited the White House to discuss terrorism issues; and [3]in 1997, Sultan joined an anti-terrorism initiative with the United States.

page 856 note 6 Prince Mohamed is named as a defendant in the complaints filed by Ashton, Burnett, Cantor, Continental Casualty, Euro Brokers, Federal Insurance, New York Marine, O'Neill and World Trade Center Properties.

page 856 note 7 Unlike the Four Princes, Prince Mohamed is not a government official of the Kingdom.

page 856 note 9 Jack B. Tate was then Acting Legal Adviser of the Department of State.

page 856 note 10 In a letter filed pursuant to Fed. R. App. P. 28(j), the Four Princes submitted the amicus brief of the Department of Justice from Kensington Intern. Ltd. v. Itoua, 505 F.3d 147, 160 (2d Cir. 2007).

page 856 note 11 Because we conclude that no exception lifts the FSIA's protection of the Kingdom and the SHC, we do not reach the Federal Plaintiffs’ argument that the actions of the SHC and other charities should be imputed to the Kingdom for FSIA purposes. The World Trade Center Plaintiffs argue that a foreign state without immunity has no Due Process rights that limit the Court's exercise of personal jurisdiction over it. But see Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1020 (2d Cir. 1991) (“There must be sufficient ‘minimum contacts’ between the foreign state and the forum ‘such that maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.“‘(quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945))). We likewise need not reach that argument.

page 857 note 12 Paragraph (2) is the Commercial Activities Exception. See Section V, infra.

page 857 note 13 (a) In general.—(1) No immunity.—A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case not otherwise covered by this chapter in which money damages are sought against a foreign state for personal injury or death that was 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.(2) claim heard.—The court shall hear a claim under this section if— (A)(i)(1) the foreign state was designated as a state sponsor of terrorism at the time the act described in paragraph (1) occurred, or was so designated as a result of such act, and, subject to sub clause (II), either remains so design nated when the claim is filed under this section or was so designated within the 6-month period before the claim is filed under this section; or in the case of an action that is refiled under this section by reason of section 1083(c)(2)(A) of the National Defense Authorization Act for Fiscal Year 2008 or is filed under this section by reason of section 1083(c)(3) of that Act, the foreign state was designated as a statesponsor of terrorism when the original action or the related action under section 1605(a)(7) (as in effect before the enactment of this section) or section 589 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997 (as contained in section 101(c) of division A of Public Law 104-208) was filed; (ii) the claimant or the victim was, at the time the act described in paragraph (1) occurred— (I) a national of the United States; (II) a member of the armed forces; or (III) otherwise an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee's employment; and (iii) in a case in which the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration; (c) Private right of action. A foreign state that is or was a state sponsor of terrorism as described in subsection (a)(2)(A)(i), and any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, shall be liable to— (1) a national of the United States, (2) a member of the armed forces, (3) an employee of the Government of the United States, or of an individual performing a contract awarded by the United States Government, acting within the scope of the employee's employment, or (4) the legal representative of a person described in para graph (1), (2), or (3), for personal injury or death caused by acts described in subsection (a)(l) of that foreign state, or of an official, employee, or agent of that foreign state, for which the courts of the United States may maintain jurisdiction under this section for money damages. In any such action, damages may include economic damages, solatium, pain and suffering, and punitive damages. In any such action, a foreign state shall be vicariously liable for the acts of its officials, employees, or agents, (d) Additional damages.—After an action has been brought under subsection (c), actions may also be brought for reasonably foreseeable property loss, whether insured or uninsured, third party liability, and loss claims under life and property insurance policies, by reason of the same acts on which the action under subsection (c) is based. (h) Definitions.—For purposes of this section—.(6) the term ‘state sponsor of terrorism’ means a country the government of which the Secretary of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), section 40 of the Arms Export Control Act (22 U.S.C. 2780), or any other provision of law, is a government that has repeatedly provided support for acts of international terrorism. 28 U.S.C.§ 1605A. On January 28, 2008, while this appeal was pending, the Terrorism Exception was superseded and replaced.SeePub. L. No. 110-181 (2008). The panel solicited and the parties provided letter briefs addressing what impact, if any, this change in the law has on this case

page 857 note 14 For instance, the Vigilant Plaintiffs protested that the prior version of the Terrorism Exception would leave those who suffered property damage without means of recovery. The amended version solves that problem—it provides federal jurisdiction and a private cause of action “for reasonably foreseeable property loss, whether insured or uninsured, third party liability, and loss claims under life and property insurance policies'’ as a consequence of state-sponsored terrorism. 28 U.S.C. § 1605A(d). Moreover, the amended version of the Terrorism Exception expands the class of claimants beyond United States nationals to members of our armed forces and employees of our government. 28 U.S.C. § 1605A(a)(2)(A)(i)(II),(III).

page 857 note 15 The defendants raise three other challenges to the application of the Torts Exception: since the Torts Exception is limited to torts that are both committed and felt within the United States, it does not concern a tortious act committed abroad, even if it has effects on United States soil; the “discretionary function” exclusion to the Torts Exception reinstates sovereign immunity; and, for lack of causation, the plaintiffs fail to state a claim in tort in any event. Because we hold that the Torts Exception does not apply to the plaintiffs’ allegations, it is unnecessary to reach these additional arguments.

page 857 note 16 The House Report provides additional examples: [A] contract by a foreign government … to construct a government building … [or] to make repairs on an embassy building … should be considered to be commercial contracts, even if their ultimate object is to further a public function. By contrast, a foreign state's mere participation in a foreign assistance program administered by the Agency for International Development (AID) is an activity whose essential nature is public or governmental, and it would not itself constitute a commercial activity. House Report at 16.

page 857 note 17 As we conclude that the defendants’ conduct falls outside the FSIA's definition of “commercial activity,” we need not consider whether a criminal act (e.g., money laundering) can ever be considered commercial for purposes of the FSIA