## Facts

- Jane Doe was killed in the September 11, 2001 terrorist attacks in the United States.
- John Doe sued multiple defendants, including Afghanistan, seeking money damages for torts arising from the attacks, including wrongful death and conspiracy, and asserted an Anti-Terrorism Act claim.
- Doe alleged Afghanistan, then seemingly governed by the Taliban, agreed to facilitate the attacks and harbored al-Qaeda.
- Doe invoked the Foreign Sovereign Immunities Act (FSIA) and asserted jurisdiction under the noncommercial tort exception, 28 U.S.C. § 1605(a)(5).
- Afghanistan did not initially appear, and the clerk entered default.
- Afghanistan later moved to vacate the default and dismiss for lack of FSIA jurisdiction, arguing the claims had to fit the FSIA terrorism exception (then § 1605(a)(7), later § 1605A), which was unavailable because Afghanistan was not designated a state sponsor of terrorism.
- The district court denied the motion without prejudice and authorized limited jurisdictional discovery on whether Taliban conduct was attributable to Afghanistan and whether the discretionary function exclusion applied.

## Issues

1. Whether claims arising from terrorist acts must proceed, if at all, only under the FSIA terrorism exception, or may proceed under the FSIA noncommercial tort exception, 28 U.S.C. § 1605(a)(5).
2. Whether disputed jurisdictional facts required discovery on (a) attribution of Taliban conduct to Afghanistan and (b) applicability of the discretionary function exclusion, § 1605(a)(5)(A).

## Decision

- The Second Circuit affirmed the order denying, without prejudice, Afghanistan’s motion to vacate default and dismiss for lack of subject-matter jurisdiction.
- The court held the suit was properly analyzed under the FSIA noncommercial tort exception and was not categorically limited to the terrorism exception.
- The court remanded for limited jurisdictional discovery because factual disputes remained regarding attribution and the discretionary function exclusion.

## Legal Principles

- The FSIA provides the sole basis for obtaining jurisdiction over a foreign state in U.S. courts; immunity is presumptive unless a statutory exception applies.
- The FSIA noncommercial tort exception, § 1605(a)(5), can apply to personal injury or death in the United States caused by tortious acts or omissions attributable to a foreign state or its officials acting within the scope of employment.
- The FSIA terrorism exception does not displace other FSIA exceptions simply because the alleged conduct involves terrorism; applicability turns on the elements of the invoked exception.
- Even when § 1605(a)(5) is invoked, immunity is preserved for claims based on discretionary functions under § 1605(a)(5)(A).
- Where jurisdictional facts relevant to FSIA immunity are genuinely disputed, a court may permit limited jurisdictional discovery before resolving a motion to dismiss.

## Conclusion

The Second Circuit allowed a 9/11-related suit against Afghanistan to proceed past an early jurisdictional challenge under the FSIA’s noncommercial tort exception, while requiring focused discovery on whether the Taliban’s alleged conduct could be treated as Afghanistan’s acts and whether the discretionary function exclusion would restore immunity.


Doe v. Bin Laden, 663 F.3d 64 (2d Cir. 2011)