     06-0319-cv(L)
     In re Terrorist Attacks on September 11, 2001

 1
 2                            UNITED STATES COURT OF APPEALS
 3
 4                                 FOR THE SECOND CIRCUIT
 5
 6                                     August Term, 2007
 7
 8
 9      (Argued: January 18, 2008                      Decided: August 14, 2008)
10
11                                Docket No. 06-0319-cv(L)
12
13      - - - - - - - - - - - - - - - - - - - -x
14
15
16      IN RE TERRORIST ATTACKS ON
17      SEPTEMBER 11, 2001
18
19
20      - - - - - - - - - - - - - - - - - - - -x
21

22             Before:             JACOBS, Chief Judge, CABRANES, Circuit
23                                 Judge, VITALIANO, District Judge.*
24
25             Appeal from orders entered in the district court for

26      the Southern District of New York (Casey, J.), dismissing

27      claims against the seven Saudi Arabian defendants-appellees

28      for lack of subject matter jurisdiction and personal

29      jurisdiction.         Affirmed.

30                                              JAMES P. KREINDLER, Kreindler &
31                                              Kreindler LLP, New York, NY
32                                              (Mark S. Moller, Justin T.
33                                              Green, Blanca I. Rodriguez,

               *
               The Honorable Eric N. Vitaliano of the United States
        District Court for the Eastern District of New York, sitting
        by designation.
 1   Andrew J. Maloney, III, of
 2   counsel, Vincent I. Parrett, on
 3   the brief), for the Ashton
 4   Plaintiffs-Appellants.
 5
 6   STEPHEN A. COZEN, Cozen
 7   O’Connor, Philadelphia, PA
 8   (Elliott R. Feldman, Sean P.
 9   Carter, of counsel, Stephen B.
10   Burbank, Philadelphia, PA, on
11   the brief), for Plaintiffs-
12   Appellants Federal Insurance
13   Company, Pacific Employers
14   Insurance Company and Vigilant
15   Insurance Company.
16
17   ANDREA BIERSTEIN, Hanly Conroy
18   Bierstein Sheridan Fisher &
19   Hayes LLP, New York, NY (Ronald
20   L. Motley, Jodi W. Flowers,
21   Michael Elsner, Justin B.
22   Kaplan, Motley Rice LLC, Mt.
23   Pleasant, SC, of counsel, Paul
24   Hanly, Jr., Jayne Conroy, Hanly
25   Conroy Bierstein Sheridan Fisher
26   & Hayes LLP, on the brief), for
27   the Burnett and World Trade
28   Center Properties and Euro
29   Brokers Plaintiffs-Appellants.
30
31   ROBERT M. KAPLAN, Ferber Chan
32   Essner & Coller, LLP, New York,
33   NY, for Plaintiffs-Appellants
34   Continental Casualty Company,
35   Transcontinental Insurance
36   Company, Transportation
37   Insurance Company, Valley Forge
38   Insurance Company, National Fire
39   Insurance Company of Hartford
40   and American Casualty Company of
41   Reading, Pennsylvania.
42
43   JERRY S. GOLDMAN, Law Offices of
44   Jerry S. Goldman & Associates,

      2
 1   P.C., New York, NY, Frederick J.
 2   Salek, on the brief), for the
 3   O’Neill Plaintiffs-Appellants.
 4
 5   DAVID H. FROMM, Brown Gavalas &
 6   Fromm LLP, New York, NY (Frank
 7   J. Rubino, on the brief), for
 8   Plaintiff-Appellant New York
 9   Marine and General Insurance
10   Company.
11
12   KENNETH L. ADAMS, Dickstein
13   Shapiro LLP, Washington, DC
14   (Christopher T. Leonardo, on the
15   brief), for Plaintiffs-
16   Appellants Cantor Fitzgerald &
17   Co. and Port Authority of New
18   York and New Jersey.
19
20   MICHAEL K. KELLOGG, Kellogg,
21   Huber, Hansen, Todd, Evans &
22   Figel, P.L.L.C., Washington, DC
23   (Mark C. Hansen, Colin S.
24   Stretch, Kelly P. Dunbar, on the
25   brief), for Defendants-Appellees
26   the Kingdom of Saudi Arabia and
27   His Royal Highness Prince Turki
28   al-Faisal bin Abdulaziz al-Saud.
29
30   LAWRENCE S. ROBBINS, Robbins,
31   Russell, Englert, Orseck &
32   Untereiner LLP, Washington, DC
33   (Roy T. Englert, Jr., Alison C.
34   Barnes, Rachel S. Li Wai Suen,
35   on the brief), for Defendant-
36   Appellee the Saudi High
37   Commission.
38
39   WILLIAM H. JEFFRESS, JR., Baker
40   Botts LLP, Washington, DC
41   (Jeffrey A. Lamken, Christopher
42   R. Cooper, Sara E. Kropf, Jamie
43   S. Kilberg, Allyson N. Ho, on
44   the brief), for Defendants-

      3
 1                                 Appellees His Royal Highness
 2                                 Prince Salman bin Abdulaziz al-
 3                                 Saud, His Royal Highness Crown
 4                                 Prince Sultan bin Abdulaziz al-
 5                                 Saud, His Royal Highness Prince
 6                                 Naif bin Abdulaziz al-Saud.
 7
 8                                 LOUIS R. COHEN, Wilmer Cutler
 9                                 Pickering Hale and Dorr LLP,
10                                 Washington, DC (Shirley C.
11                                 Woodward, Tracey C. Allen,
12                                 Douglas F. Curtis, David Bowker,
13                                 on the brief), for Defendant-
14                                 Appellee His Royal Highness
15                                 Prince Mohamed al Faisal al
16                                 Saud.
17
18   DENNIS JACOBS, Chief Judge:
19
20       The plaintiffs-appellants are persons who incurred

21   losses in the September 11, 2001 terrorist attacks: those

22   who suffered personal injuries, the families and

23   representatives of those who died, insurers and property

24   owners.   They have brought tort claims against hundreds of

25   parties: foreign governments, charitable entities, and

26   individuals alleged to have provided financial and

27   logistical support to al Qaeda in the runup to the attacks.

28   Plaintiffs take this appeal from a partial final judgment

29   entered on January 10, 2006 in the United States District

30   Court for the Southern District of New York (Casey, J.),

31   dismissing their claims against twelve of the numerous

32   defendants.   They have appealed that judgment with respect

                                    4
1    to seven of the dismissed defendants: the Kingdom of Saudi

2    Arabia (“the Kingdom”), four Saudi princes (“Four Princes”),

3    a Saudi banker (“Mohamed”), and the Saudi High Commission

4    for Relief to Bosnia and Herzegovina (“SHC”).    We have

5    jurisdiction over their appeals pursuant to 28 U.S.C. §

6    1291.

7        The chief issue on appeal is the scope of foreign

8    sovereign immunity.   The Foreign Sovereign Immunities Act of

9    1976, 28 U.S.C. §§ 1330, 1602-1611 (“FSIA”), grants foreign

10   sovereigns immunity from suit in the United States subject

11   to enumerated exceptions.   We conclude that the FSIA

12   protects the appellees--most obviously, the Kingdom itself.

13   First, we hold that the FSIA applies to individual officials

14   of foreign governments in their official capacities, and

15   therefore to the Four Princes.    Second, we affirm the

16   district court’s conclusion that the SHC is an “agency or

17   instrumentality” of the Kingdom, to which the FSIA likewise

18   applies.

19       Further, we conclude that none of the FSIA’s exceptions

20   applies.   The plaintiffs’ claims do not come within the

21   statutory exception for state-sponsored terrorist acts, 28

22   U.S.C. § 1605A (“Terrorism Exception”), because the Kingdom


                                   5
1    has not been designated a state sponsor of terrorism by the

2    United States.    As to the exception for personal injury or

3    death caused by a foreign sovereign’s tortious act, id. §

4    1605 (a)(5) (“Torts Exception”), we decline to characterize

5    plaintiffs’ claims--expressly predicated on a state-

6    sponsored terrorist act--as sounding in tort.     Nor do the

7    plaintiffs’ claims come within the statutory exception for a

8    foreign sovereign’s commercial activity, id. § 1605(a)(2)

9    (“Commercial Activities Exception”), because the defendants’

10   specific alleged conduct--supporting Muslim charities that

11   promote and underwrite terrorism--is not conduct in trade,

12   traffic or commerce.

13       Accordingly, we agree with the district court that it

14   lacked subject matter jurisdiction over the claims against

15   the Kingdom, the Four Princes in their official capacities,

16   and the SHC.     We likewise affirm the district court’s

17   dismissal of the claims against the Four Princes (in their

18   personal capacities) and Mohamed for want of personal

19   jurisdiction, and the denial of the plaintiffs’ motions for

20   jurisdictional discovery.

21

22


                                     6
1                             BACKGROUND

2        The complaints vary somewhat in their details, but they

3    share a core allegation: the defendants played a critical

4    role in the September 11 attacks by funding Muslim charities

5    that, in turn, funded al Qaeda.   Since “there would not be a

6    trigger to pull or a bomb to blow up without the resources

7    to acquire such tools of terrorism and to bankroll the

8    persons who actually commit the violence,”   Boim v. Quranic

9    Literacy Inst., 291 F.3d 1000, 1021 (7th Cir. 2002),

10   plaintiffs argue that the defendants should be held liable

11   for the consequences of their material support for al Qaeda.

12   The complaints, which we accept as true at the pleading

13   stage, Garb v. Republic of Poland, 440 F.3d 579, 581 (2d

14   Cir. 2006), allege the facts set forth below.

15

16       The SHC2
17
18       The SHC was formed in 1993 by decree of King Fahd (who

19   was then President of the Council of Ministers, the

20   Kingdom’s highest governing body), apparently to support



          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.
                                  7
1    Bosnian Muslims displaced by civil war.     The SHC acted as “a

2    fully integrated component of al Qa[e]da’s logistical and

3    financial support infrastructure.”   In the early 1990s, al

4    Qaeda fighters began infiltrating Bosnia disguised as SHC

5    relief workers.   The SHC has funneled millions of dollars to

6    al Qaeda, evidenced by investigators’ inability “to account

7    for nearly $41 million” in SHC donations.    In an October

8    2001 raid of the SHC’s Sarajevo offices, U.S. government

9    officials found computer hard drives containing photos of

10   the World Trade Center, the U.S. embassies in Kenya and

11   Tanzania, and the U.S.S. Cole (all targets of terrorist

12   attacks); documents about pesticides and crop dusters;

13   photos and maps of Washington, D.C. (with prominent

14   government buildings marked); and instructions for

15   fabricating U.S. State Department badges.    After the raid,

16   the Bosnian Financial Police reported that peacekeeping

17   forces “confiscated some documentation for which it can be

18   claimed with certainty that it does not belong in the scope

19   of work of a humanitarian organization.”

20       Similar allegations have been lodged against numerous

21   other Muslim charities.   Although those claims are not

22   raised in this appeal, the allegations about the charities


                                   8
1    provide the necessary background for the issues here.   The

2    summary allegation is as follows:

 3             Ostensible charitable organizations, and in
 4             particular, Islamic charities under the
 5             control of the Kingdom of Saudi Arabia, have
 6             played a singularly important role in al
 7             Qa[e]da’s development and pursuit of its
 8             perverse ambitions. These “charities” have
 9             served as the primary vehicle for raising,
10             laundering and distributing funds on behalf of
11             al Qa[e]da from its inception. In addition,
12             these charities have provided arms, false
13             travel documentation, physical assets and
14             logistical support to al Qa[e]da.
15
16       These allegations include a wealth of detail

17   (conscientiously cited to published and unpublished sources)

18   that, if true, reflect close working arrangements between

19   ostensible charities and terrorist networks, including al

20   Qaeda.   The United States government has listed several of

21   the charities (or their branch offices) as “Specifically

22   Designated Global Terrorists,” and has taken steps to shut

23   down their operations.

24

25       The Kingdom of Saudi Arabia3

26       The Kingdom contributed to the terrorist-linked



          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.
                                   9
1    charities described above and closely monitored their relief

2    efforts abroad, with the express knowledge that those

3    charities were funneling the Kingdom’s funds to al Qaeda.

4    According to the Federal Insurance Plaintiffs, the Kingdom

5    exercises complete oversight and control over the charities,

6    making the charities alter-egos and agents whose deeds can

7    be imputed to the Kingdom.

8

9        The Four Princes4

10       The Four Princes are: His Royal Highness Prince Salman

11   bin Abdulaziz al-Saud (“Prince Salman”), His Royal Highness

12   Crown Prince Sultan bin Abdulaziz al-Saud (“Prince Sultan”),

13   His Royal Highness Prince Naif bin Abdulaziz al-Saud

14   (“Prince Naif”), and His Royal Highness Prince Turki al-

15   Faisal bin Abdulaziz al-Saud (“Prince Turki”).   Broadly

16   stated, it is alleged that they caused money to be given to

17   the Muslim charities (from the Kingdom as well as their own

18   accounts), with the knowledge that the charities would



          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.
                                  10
1    transfer the funds to al Qaeda.

2        Princes Naif, Sultan and Turki sit on the Kingdom’s

3    Supreme Council of Islamic Affairs, which monitors and

4    approves Islamic charitable giving both within and outside

5    the Kingdom.   (The Kingdom generally requires Saudis to

6    obtain government approval for private charitable giving

7    abroad.)

8        Prince Salman is President of the SHC and Governor of

9    Riyadh Province.   He intended that the SHC would be a

10   conduit for funding and supporting the Bosnian Islamic

11   movement, including al Qaeda.        Prince Salman was put on

12   notice of SHC’s connection with al Qaeda by a letter he

13   received in 2000 from a group called the “Mothers of

14   Srebrenica” complaining that the SHC’s money was not being

15   used for humanitarian aid in Bosnia.

16       Prince Sultan is Chairman of the Supreme Council and

17   First Deputy President of the Council of Ministers.        He has

18   been designated as the successor to King Abdullah.        Sultan

19   received at least three warnings that the Muslim charities

20   were al Qaeda fronts.5   Prince Sultan also made personal


          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
                                     11
1    contributions to the charities.     According to a 1996 report

2    in a Muslim newspaper, he donated one million Saudi dollars

3    to one of the charities pursuant to an annual pledge.

4    Sultan also made a sizable contribution to the Saudi Joint

5    Relief Committee of Kosovar Refugees (“SJRC”), which

6    oversees several other Muslim charities.

7        Prince Naif is Saudi Minister of the Interior, in which

8    capacity he monitors and controls the charities that operate

9    in Saudi Arabia.   At one time, Naif served as the General

10   Supervisor of the SJRC.   Prince Naif was present with Prince

11   Sultan when he was warned that Saudi charities serve as

12   fronts for terrorist groups.    Naif has personally

13   contributed more than two million Saudi dollars to the SJRC,

14   and has helped the SJRC raise money from other wealthy

15   Saudis.


     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.
                                    12
1        Prince Turki was the director of the Kingdom’s

2    Department of General Intelligence (“DGI”) until August

3    2001.       In the 1980s, Turki met Osama bin Laden at the Saudi

4    embassy in Islamabad, Pakistan; he later met with bin Laden

5    at least five times in the 1980s and 1990s.       In 1998, Turki

6    agreed with the Taliban and al Qaeda that the Kingdom would

7    not attempt to extradite bin Laden or his followers, in

8    return for bin Laden’s agreement not to target the Kingdom

9    or its royal family.       During Turki’s tenure, there existed

10   “near identity” between DGI and the Taliban.       The Federal

11   Plaintiffs allege in addition that Turki donated to the

12   charities in his personal capacity.

13

14       Prince Mohamed6

15       The plaintiffs’ claims against Mohamed, His Royal

16   Highness Prince Mohamed al Faisal al Saud, focus on his role

17   in Islamic banking.7      Osama bin Laden and other terrorists

18   held accounts at banks (and subsidiaries of banks) managed


          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.
             7
            Unlike the Four Princes, Prince Mohamed is not a
     government official of the Kingdom.
                                       13
1    by Mohamed; those banks are governed by Islamic law, or

2    sharia, which prohibits interest; instead, the banks and

3    their depositors manage the funds jointly.     It is alleged

4    that Mohamed knowingly provided material sponsorship to

5    international terrorism.

6

7        Procedural History

8        The Burnett Plaintiffs filed suit against Princes

9    Sultan and Turki (and other defendants not present in this

10   appeal) in the United States District Court for the District

11   of Columbia.     The district court (Robertson, J.), dismissed

12   the claims brought against Princes Sultan and Turki in their

13   official capacities for lack of subject matter jurisdiction,

14   and the claims against Prince Sultan in his personal

15   capacity for lack of personal jurisdiction.    Burnett v. Al

16   Baraka Inv. & Dev. Corp., 292 F. Supp. 2d 9 (D.D.C. 2003).

17       On December 9, 2003, the Judicial Panel on Multi-

18   district Litigation transferred Burnett to the United States

19   District Court for the Southern District of New York as MDL

20   1570 to be consolidated for pretrial purposes with other

21   similar cases.    The consolidated proceeding was assigned to

22   the late Judge Richard Conway Casey.


                                     14
1         On January 18, 2005, Judge Casey dismissed the

2    consolidated claims against the Kingdom, Princes Sultan and

3    Turki, and Mohamed.   In re Terrorist Attacks on Sept. 11,

4    2001, 349 F. Supp. 2d 765 (S.D.N.Y. 2005) (“In re Terrorist

5    Attacks I”).    Citing the majority view among the circuits,

6    Judge Casey concluded that the FSIA shields Princes Sultan

7    and Turki in their official capacities.    (The plaintiffs do

8    not dispute that the FSIA protects the Kingdom as a foreign

9    sovereign.)    Judge Casey further held that no exception to

10   the FSIA defeated the defendants’ sovereign immunity.

11       Judge Casey likewise dismissed the claims against

12   Princes Sultan and Turki (in their personal capacities) and

13   against Mohamed for lack of personal jurisdiction.    Judge

14   Casey reasoned that the plaintiffs had failed to “offer any

15   facts to lend support to their allegation that Prince Sultan

16   purposefully directed his activities at this forum by

17   donating to charities that he knew at the time supported

18   international terrorism.”   In re Terrorist Attacks I, 349 F.

19   Supp. 2d at 813.   Similarly, the Federal Plaintiffs failed

20   to present “any specific facts from which this Court could

21   infer Prince Turki’s primary and personal involvement in, or

22   support of, international terrorism and al Qaeda.


                                    15
1    Conclusory allegations that he donated money to charities,

2    without specific factual allegations that he knew they were

3    funneling money to terrorists, do not suffice.”    Id. at 813-

4    14.   Finally, there was no allegation “that Prince Mohamed

5    had any knowledge or involvement in any al Qaeda accounts at

6    any of the banks he chaired”; and his connection to the

7    Sudanese bank “which purportedly knowingly opened accounts

8    for al Qaeda operatives, including Osama bin Laden, is too

9    remote in time and proximity to implicate” him.    Id. at 816.

10         On May 5, 2005, the district court entered an order

11   dismissing the claims against the Kingdom, Princes Sultan

12   and Turki, and Mohamed in the remaining consolidated cases.

13   (The plaintiffs conceded that the allegations and evidence

14   in the other consolidated cases against those four

15   defendants did not materially differ from the allegations in

16   the cases already dismissed.)

17         In an opinion and order issued on September 21, 2005,

18   the district court dismissed the Ashton, Burnett and Federal

19   Plaintiffs’ claims against Princes Salman and Naif and the

20   SHC on substantially the same grounds.   The court concluded

21   that the SHC is an agency of the Kingdom entitled to

22   immunity under the FSIA, and that subject matter


                                     16
1    jurisdiction was therefore lacking over the claims against

2    the SHC and Princes Salman and Naif (in their official

3    capacities).    The claims against Princes Salman and Naif in

4    their personal capacity were dismissed for lack of personal

5    jurisdiction.   In re Terrorist Attacks on Sept. 11, 2001,

6    392 F. Supp. 2d 539 (S.D.N.Y. 2005) (“In re Terrorist

7    Attacks II”).

8        On December 16, 2005, the district court certified as

9    “final” the orders of January 18, 2005 and September 21,

10   2005, pursuant to Rule 54(b) of the Federal Rules of Civil

11   Procedure, with respect to the Kingdom; Princes Sultan,

12   Turki, Salman and Naif; Mohamed and the SHC.8   By virtue of

13   the December 16, 2005 certification, this Court has

14   jurisdiction over the appeal under 28 U.S.C. § 1291.

15

16                             DISCUSSION

17       “The standard of review applicable to district court

18   decisions regarding subject matter jurisdiction under the

19   FSIA is clear error for factual findings and de novo for

20   legal conclusions.”   Robinson v. Gov’t of Malaysia,


          8
            Per stipulation, the plaintiffs with claims pending
     against Princes Salman and Naif will be bound by any
     appellate decision on the district court’s dismissals.
                                    17
1    269 F.3d 133, 138 (2d Cir. 2001) (quoting U.S. Titan, Inc.

2    v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 150-51 (2d

3    Cir. 2001) (internal quotation marks omitted)).     The same

4    standards apply to decisions on personal jurisdiction.

5    Sunward Electronics, Inc. v. McDonald, 362 F.3d 17, 22 (2d

6    Cir. 2004).   We review a district court’s decision to deny

7    jurisdictional discovery for abuse of discretion.    Best Van

8    Lines, Inc. v. Walker, 490 F.3d 239, 255 (2d Cir. 2007).

9

10                                 I

11       “[T]he FSIA provides the sole basis for obtaining

12   jurisdiction over a foreign state in federal court.”

13   Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S.

14   428, 439 (1989).   See also Verlinden B.V. v. Cent. Bank of

15   Nigeria, 461 U.S. 480, 493 (1983) (stating that the FSIA

16   “must be applied by the District Courts in every action

17   against a foreign sovereign, since subject matter

18   jurisdiction in any such action depends on the existence of

19   one of the specified exceptions to foreign sovereign

20   immunity” (citing 28 U.S.C. § 1330(a)); Cabiri v. Gov’t of

21   Republic of Ghana, 165 F.3d 193, 196 (2d Cir. 1999) (“The

22   FSIA is the sole source for subject matter jurisdiction over


                                   18
1    any action against a foreign state.”).     “Under the Act, a

2    foreign state is presumptively immune from the jurisdiction

3    of United States courts; unless a specified exception

4    applies, a federal court lacks subject-matter jurisdiction

5    over a claim against a foreign state.”     Saudi Arabia v.

6    Nelson, 507 U.S. 349, 355 (1993); 28 U.S.C. § 1604 (making

7    foreign states “immune from the jurisdiction of the courts

8    of the United States and of the States except as provided in

9    sections 1605 to 1607 of this chapter”).    Potentially

10   relevant here are the exceptions for torts, terrorism, and

11   commercial activities.   28 U.S.C. §§ 1605(a)(5), 1605A,

12   1605(a)(2).

13       “Under the FSIA, . . . personal jurisdiction equals

14   subject matter jurisdiction plus valid service of process.”

15   Shapiro v. Republic of Bolivia, 930 F.2d 1013, 1020 (2d Cir.

16   1991).   See 28 U.S.C. § 1330(b) (“Personal jurisdiction over

17   a foreign state shall exist as to every claim for relief

18   over which the district courts have jurisdiction under

19   subsection (a) where service has been made under section

20   1608 of this title.”).   Of course, “the Act cannot create

21   personal jurisdiction where the Constitution forbids it.

22   Accordingly, each finding of personal jurisdiction under the


                                   19
1    FSIA requires, in addition, a due process scrutiny of the

2    court’s power to exercise its authority over a particular

3    defendant.”   Texas Trading & Milling Corp. v. Fed. Republic

4    of Nigeria, 647 F.2d 300, 308 (2d Cir. 1981).

5        In a motion to dismiss for lack of subject matter

6    jurisdiction under the FSIA, the defendant must present a

7    “prima facie case that it is a foreign sovereign.”     Virtual

8    Countries, Inc. v. Republic of South Africa, 300 F.3d 230,

9    241 (2d Cir. 2002) (internal quotation marks omitted).     The

10   plaintiff then “has the burden of going forward with

11   evidence showing that, under exceptions to the FSIA,

12   immunity should not be granted.”    Cargill Intern. S.A. v.

13   M/T Pavel Dybenko, 991 F.2d 1012, 1016 (2d Cir. 1993).

14   “Determining whether this burden is met involves a review

15   [of] the allegations in the complaint, the undisputed facts,

16   if any, placed before [the court] by the parties, and--if

17   the plaintiff comes forward with sufficient evidence to

18   carry its burden of production on this issue--[resolution

19   of] disputed issues of fact.’”     Virtual Countries, 300 F.3d

20   at 241 (quoting Robinson, 269 F.3d at 141 (alterations in

21   original and internal quotation marks omitted)).     The

22   “ultimate burden of persuasion remains with the alleged


                                   20
1    foreign sovereign.”   Cargill, 991 F.2d at 1016 (quoting

2    Robinson, 269 F.3d at 141 (internal quotation marks

3    omitted)).

4

5                                  II
6
7        This Circuit has not yet decided whether the FSIA

8    protects an individual official of a foreign government

9    acting in his official capacity.   See Kensington Intern.

10   Ltd. v. Itoua, 505 F.3d 147, 160, 161 (2d Cir. 2007)

11   (acknowledging that “it is an open question in this circuit

12   whether individual officials enjoy sovereign immunity under

13   the FSIA,” and remanding for the district court “to address

14   in the first instance . . . under what circumstances, if

15   any, the FSIA applies to individuals”); Tachiona v. United

16   States, 386 F.3d 205, 220 (2d Cir. 2004) (expressing in

17   dicta “some doubt as to whether the FSIA was meant to

18   supplant the ‘common law’ of head-of-state immunity, which

19   generally entailed deference to the executive branch’s

20   suggestions of immunity”); In re Doe, 860 F.2d 40, 45 (2d

21   Cir. 1988) (“Because the FSIA makes no mention of

22   heads-of-state, their legal status remains uncertain.”).

23


                                   21
1                                 A

2        We join our sister circuits in holding that an

3    individual official of a foreign state acting in his

4    official capacity is the “agency or instrumentality” of the

5    state, and is thereby protected by the FSIA.     See Velasco v.

6    Gov’t of Indonesia, 370 F.3d 392, 399 (4th Cir. 2004)

7    (“Claims against the individual in his official capacity are

8    the practical equivalent of claims against the foreign

9    state.”); Keller v. Cent. Bank of Nigeria, 277 F.3d 811, 815

10   (6th Cir. 2002) (“[N]ormally foreign sovereign immunity

11   extends to individuals acting in their official capacities

12   as officers of corporations considered foreign

13   sovereigns.”); Byrd v. Corporacion Forestal y Industrial de

14   Olancho S.A., 182 F.3d 380, 388 (5th Cir. 1999) (same);

15   Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d

16   1020, 1027 (D.C. Cir. 1997) (“Individuals acting in their

17   official capacities are considered ‘agenc[ies] or

18   instrumentalit[ies] of a foreign state;’ these same

19   individuals, however, are not entitled to immunity under the

20   FSIA for acts that are not committed in an official

21   capacity.”); Chuidian v. Philippine Nat’l Bank, 912 F.2d

22   1095, 1101-03 (9th Cir. 1990) (“We thus join the majority of


                                  22
1    courts which have similarly concluded that section 1603(b)

2    can fairly be read to include individuals sued in their

3    official capacity.”).     Several district judges in this

4    Circuit have reached the same conclusion.     See, e.g.,

5    Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah,

6    184 F. Supp. 2d 277, 286-87 (S.D.N.Y. 2001) (Lynch, J.);

7    Tannenbaum v. Rabin, 1996 WL 75283, at *2 (E.D.N.Y. Feb. 13,

8    1996) (Glasser, J.); Bryks v. Canadian Broad. Corp., 906 F.

9    Supp. 204, 210 (S.D.N.Y. 1995) (Mukasey, J.); Kline v.

10   Kaneko, 685 F. Supp. 386, 389 n.1 (S.D.N.Y. 1988) (Ward,

11   J.).

12          The Seventh Circuit is an outlier.   It has construed

13   the FSIA’s grant of immunity narrowly, to exclude individual

14   government officials, reasoning that “[i]f Congress meant to

15   include individuals acting in the official capacity in the

16   scope of the FSIA, it would have done so in clear and

17   unmistakable terms.”    Enahoro v. Abubakar, 408 F.3d 877,

18   881-82 (7th Cir. 2005).

19

20                                   B

21          “[F]oreign sovereign immunity is a matter of grace and

22   comity on the part of the United States, and not a


                                     23
1    restriction imposed by the Constitution.”         Verlinden, 461

2    U.S. at 486.    Until the 1950s, the judiciary “consistently .

3    . . deferred to the decisions of the political branches--in

4    particular, those of the Executive Branch--on whether to

5    take jurisdiction over actions against foreign sovereigns

6    and their instrumentalities.”        Id.   In 1952, the State

7    Department issued the “Tate Letter,”9 which “announced [the]

8    adoption of the ‘restrictive’ theory of foreign sovereign

9    immunity.    Under this theory, immunity is confined to suits

10   involving the foreign sovereign’s public acts, and does not

11   extend to cases arising out of a foreign state’s strictly

12   commercial acts.”    Id. at 487.      The Ninth Circuit described

13   the scheme of the Tate Letter as follows:

14               Typically, a foreign state or instrumentality
15               faced with a suit in a court in our country
16               would apply to the State Department for a
17               finding of immunity. The State Department
18               would make a determination, considering the
19               common law principles expressed in the
20               Restatement, and would convey the finding to
21               the relevant court by filing a “suggestion.”
22               In fact, however, the courts treated such
23               “suggestions” as binding determinations, and
24               would invoke or deny immunity based upon the
25               decision of the State Department.
26
27   Chuidian, 912 F.2d at 1100.     But by the 1970s, some in


          9
            Jack B. Tate was then Acting Legal Adviser of the
     Department of State.
                                     24
1    Congress had grown concerned that the Tate Letter system was

2    “leaving immunity decisions subject to diplomatic pressures

3    rather than to the rule of law.”   Id.

4        The FSIA, enacted in 1976, “largely codif[ied] the

5    existing common law of sovereign immunity,” with the notable

6    exception that it “remove[d] the role of the State

7    Department in determining immunity.”     Id.; see also H.R.

8    Rep. No. 94-1487, at 7 (1976), reprinted in 1976

9    U.S.C.C.A.N. 6604, 6605 (“House Report”) (“[T]he bill would

10   codify the so-called ‘restrictive’ principle of sovereign

11   immunity, as presently recognized in international law.

12   Under this principle, the immunity of a foreign state is

13   ‘restricted’ to suits involving a foreign state’s public

14   acts (jure imperii) and does not extend to suits based on

15   its commercial or private acts (jure gestionis).”).

16       Recognizing “the potential sensitivity of actions

17   against foreign states,” the FSIA “aimed to facilitate and

18   depoliticize litigation against foreign states and to

19   minimize irritations in foreign relations arising out of

20   such litigation.”   Cargill, 991 F.2d at 1016 (internal

21   citation and quotation marks omitted).

22       The FSIA defines “foreign state” as follows:


                                   25
 1            (a) “foreign state” . . . includes a political
 2            subdivision of a foreign state or an agency or
 3            instrumentality of a foreign state as defined
 4            in subsection (b).
 5
 6            (b) An “agency or instrumentality of a foreign
 7            state” means any entity--
 8
 9                (1) which is a separate legal person,
10                corporate or otherwise, and
11
12                (2) which is an organ of a foreign state
13                or political subdivision thereof, or a
14                majority of whose shares or other
15                ownership interest is owned by a foreign
16                state or political subdivision thereof,
17                and
18
19                (3) which is neither a citizen of a State
20                of the United States as defined in
21                section 1332(c) and (e) of this title,
22                nor created under the laws of any third
23                country.
24
25   28 U.S.C. § 1603(a), (b).

26

27                                C

28       Several plaintiffs read “state,” as used in the FSIA,

29   as a term of art meaning “an entity that has a defined

30   territory and a permanent population, under the control of

31   its own government, and that engages in, or has the capacity

32   to engage in, formal relations with other such entities.”

33   Restatement (Third) of Foreign Relations Law § 201 (1987).

34   This definition necessarily excludes individual government


                                  26
1    officials.    Nor, argue these plaintiffs, can an official be

2    considered an “agency or instrumentality” of a state,

3    because the entities listed in the subclauses of § 1603(b)

4    are “defined in terms not usually used to describe natural

5    persons.”     Tachiona, 386 F.3d at 221.   Writing as amicus

6    curiae in another FSIA lawsuit, the Department of Justice

7    has opined that the FSIA, with its exclusions and

8    obscurities, stops short of shielding government officials,

9    who instead enjoy an expansive common law immunity.10

10   Because we decide this case on the ground that the FSIA

11   protects individual government representatives in their

12   official capacities, we need not consider any continuing

13   vitality of sovereign immunity under the common law.

14       The Ninth Circuit’s opinion in Chuidian is the most

15   detailed statement of the majority view that an individual

16   official is an “agency or instrumentality” of a foreign

17   government.    As Chuidian observes, the “terms ‘agency,’

18   ‘instrumentality,’ ‘organ,’ “entity,’ and ‘legal person,’

19   while perhaps more readily connoting an organization or



          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).
                                     27
1    collective, do not in their typical legal usage necessarily

2    exclude individuals.”   Chuidian, 912 F.2d at 1101.

3    Moreover, the FSIA’s “legislative history does not even hint

4    of an intent to exclude individual officials,” but does

5    contain “numerous statements [suggesting] that Congress

6    intended the Act to codify the existing common law

7    principles of sovereign immunity.”   Id.   Prior to the FSIA’s

8    passage, those principles “expressly extended immunity to

9    individual officials acting in their official capacity.”

10   Id.; see also Restatement (Second) of Foreign Relations Law

11   § 66(f) (1965) (“The immunity of a foreign state . . .

12   extends to . . .   any other public minister, official, or

13   agent of the state with respect to acts performed in his

14   official capacity if the effect of exercising jurisdiction

15   would be to enforce a rule of law against the state.”).    As

16   a consequence, if the FSIA did not extend to individuals, it

17   would represent “a substantial unannounced departure from

18   prior common law.”   Chuidian, 912 F.2d at 1101.   This is so

19   because, after the FSIA’s passage, the Restatement (Third)

20   of Foreign Relations Law “delete[d] in its entirety the

21   discussion of the United States common law of sovereign

22   immunity, and substitute[d] a section analyzing issues


                                   28
1    exclusively under the [FSIA].”     Id. at 1103.   Insofar as

2    this revision marks the recognition that we now look to the

3    FSIA where we once sought guidance from the common law, we

4    would expect a departure from the prior common-law rule to

5    be made explicitly, not sub silentio.

6        The Ninth Circuit rejected the view, advanced by the

7    Department of Justice, that the foreign state is protected

8    by the FSIA while its officials are otherwise protected by

9    common law immunity.   Under that approach, “presumably        . .

10   . [courts] would once again be required to give conclusive

11   weight to the State Department’s determination of whether an

12   individual’s activities fall within the traditional

13   exceptions to sovereign immunity,” which would run “counter

14   to Congress’s stated intent of removing the discretionary

15   role of the State Department.”     Id. at 1102.

16       We join the majority of Circuits in holding that the

17   FSIA grants immunity to individual officials of a foreign

18   government for their official-capacity acts, and we

19   subscribe to the reasoning of Chuidian.

20       That analysis, largely based on legislative history, is

21   grounded in the statutory wording.    The term “agency” has a

22   more abstract common meaning than a governmental bureau or


                                   29
1    office: an agency is any thing or person through which

2    action is accomplished.   We need not decide how broadly to

3    construe this word in other contexts; however, it is easily

4    open enough to include senior members of a foreign state’s

5    government and secretariat.

6        This reading of “agency” is consistent with the evident

7    principle that the state cannot act except through

8    individuals.   Thus, the act-of-state doctrine precludes our

9    courts from sitting in judgment “on the acts of the

10   government of another done within its own territory,”

11   including acts committed by individual officials of foreign

12   governments.   Bigio v. Coca-Cola Co., 239 F.3d 440, 451 (2d

13   Cir. 2000) (quoting Underhill v. Hernandez, 168 U.S. 250,

14   252 (1897)).   This is so because “the acts of the official

15   representatives of the state are those of the state itself,

16   when exercised within the scope of their delegated powers.”

17   Underhill v. Hernandez, 65 F. 577, 579 (2d Cir. 1895), aff’d

18   168 U.S. 250 (1897); see also Oetjen v. Cent. Leather Co.,

19   246 U.S. 297, 303 (1918) (concluding that the action of a

20   “duly commissioned military commander” of the Mexican

21   government “[p]lainly . . . was the action, in Mexico, of

22   the legitimate Mexican government when dealing with a


                                   30
1    Mexican citizen”).   Similarly, “official-capacity suits

2    generally represent only another way of pleading an action

3    against an entity of which an officer is an agent.”      Monell

4    v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978).     In

5    other words, a claim against an agency of state power,

6    including a state officer acting in his official capacity,

7    can be in effect a claim against the state.   In other

8    contexts as well, the law recognizes that the immunity of a

9    principal does not amount to much without the extension of

10   that immunity to its agents.    See, e.g., Gravel v. United

11   States, 408 U.S. 606, 616-17 (1972) (treating as one a

12   Senator and his aides for purpose of legislative immunity;

13   “if they are not so recognized, the central role of the

14   Speech or Debate Clause--to prevent intimidation of

15   legislators by the Executive and accountability before a

16   possibly hostile judiciary--will inevitably be diminished

17   and frustrated” (internal citation omitted)); Oliva v.

18   Heller, 839 F.2d 37, 40 (2d Cir. 1988) (reasoning that

19   because “law clerks are simply extensions of the judges at

20   whose pleasure they serve . . . for purposes of absolute

21   judicial immunity, judges and their law clerks are as one”

22   (internal citation and quotation marks omitted)).


                                    31
1        This conclusion finds reinforcement in the new

2    iteration of the Terrorism Exception, which makes specific

3    reference to the legal status of “an official, employee or

4    agent” of the foreign state.   See 28 U.S.C. § 1605A(a)(1)

5    (lifting immunity in connection with, inter alia, the

6    “provision of material support or resources . . . by an

7    official, employee, or agent of [a] foreign state while

8    acting within the scope of his or her office, employment, or

9    agency”); id. at (c) (creating private right of action

10   against a “foreign state that is or was a state sponsor of

11   terrorism . . . , and any official, employee, or agent of

12   that foreign state while acting within the scope of his or

13   her office, employment, or agency”).    These provisions

14   evince congressional recognition that claims against

15   individual officials of a foreign government must be brought

16   within the confines of the FSIA.    Individuals and government

17   officers, as non-state entities, cannot be designated “state

18   sponsor[s] of terrorism.”   So that such individuals would

19   nevertheless fall within the scope of the Terrorism

20   Exception to FSIA immunity, Congress enacted specific

21   provisions that defined the exception to reach these

22   individuals.   If these individuals were not otherwise immune


                                    32
1    from suit pursuant to the FSIA, these provisions would be

2    entirely superfluous.    We can thus infer that Congress

3    considered individuals and government officers to be within

4    the scope of the FSIA.   Although “the views of a subsequent

5    Congress form a hazardous basis for inferring the intent of

6    an earlier one,” the Terrorism Exception suggests that

7    Congress has long contemplated the FSIA’s application to

8    individuals.   United States v. Philadelphia Nat’l Bank, 374

9    U.S. 321, 348-49 (1963).    In light of those considerations,

10   we hold that the FSIA treats individual agents of the

11   foreign state, when they undertake their official duties, as

12   the “foreign state” for the purposes of 28 U.S.C. § 1603.

13

14                                  III

15       The Burnett Plaintiffs challenge the district court’s

16   conclusion that the SHC is an “agency or instrumentality” of

17   the Kingdom and therefore entitled to immunity under the

18   FSIA.   28 U.S.C. § 1603(a).

19       To recap, an “agency or instrumentality of a foreign

20   state” is any entity

21             (1) which is a separate legal person,
22             corporate or otherwise, and
23
24             (2) which is an organ of a foreign state or

                                    33
1               political subdivision thereof, or a majority
2               of whose shares or other ownership interest is
3               owned by a foreign state or political
4               subdivision thereof, and
5
6               (3) which is neither a citizen of a State of
7               the United States as defined in section
8               1332(c) and (e) of this title, nor created
9               under the laws of any third country.

10   28 U.S.C. § 1603(b).

11       The question is whether the SHC is an “organ” of the

12   Kingdom.   28 U.S.C. § 1603(b)(2).   There is no definition of

13   that word in the FSIA; however, criteria can be found:

14              (1) whether the foreign state created the
15              entity for a national purpose; (2) whether the
16              foreign state actively supervises the entity;
17              (3) whether the foreign state requires the
18              hiring of public employees and pays their
19              salaries; (4) whether the entity holds
20              exclusive rights to some right in the
21              [foreign] country; and (5) how the entity is
22              treated under foreign state law.
23
24   Filler v. Hanvit Bank, 378 F.3d 213, 217 (2d Cir. 2004)

25   (quoting Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d

26   841, 846-47 (5th Cir. 2000)).    See also USX Corp. v.

27   Adriatic Ins. Co., 345 F.3d 190, 209 (3d Cir. 2003)

28   (considering the five Filler factors, along with “the level

29   of government financial support” and “the ownership

30   structure of the entity”).   We agree that “Filler invites

31   district courts to engage in a balancing process, without


                                     34
1    particular emphasis on any given factor and without

2    requiring that every factor weigh in favor of, or against,

3    the entity claiming FSIA immunity.”   Murphy v. Korea Asset

4    Mgmt. Corp., 421 F. Supp. 2d 627, 641 (S.D.N.Y. 2005)

5    (Holwell, J.).

6        To support its status as an organ of the Kingdom, the

7    SHC submitted declarations from Saud bin Mohammad Al-

8    Roshood, Director of the Executive Office of SHC, and Dr.

9    Mutlib bin Abdullah Al-Nafissa, a member of the Council of

10   Ministers authorized to speak on the SHC’s behalf.

11       Al-Roshood explains that, during and after the civil

12   war in Bosnia,

13            there was much interest within the Kingdom of
14            Saudi Arabia, both among citizens and the
15            government, in supporting charitable projects
16            in Bosnia-Herzegovina. The Kingdom of Saudi
17            Arabia desired to “speak with one voice” as a
18            nation . . . The [SHC] was therefore formed to
19            centralize all charitable giving from the
20            Kingdom to Bosnia-Herzegovina. When formed,
21            the [SHC] was vested with the sole authority
22            to collect and distribute charitable funds in
23            Bosnia.
24
25   Al-Roshood states that many SHC employees are seconded from

26   the Kingdom’s ministries or agencies, which continues paying

27   their salaries.   Other employees are on contract with the

28   SHC, and are paid by the SHC.


                                     35
1        Al-Nafissa explains that the Council of Ministers

2    created the SHC in 1993, pursuant to its authority (under

3    Council law) “to order the formation of a governmental

4    entity.”     The same order appointed Prince Salman as SHC’s

5    president.    Al-Nafissa avers that “a government commission,

6    such as the [SHC], always is chaired or presided over by a

7    governmental official and conducts its affairs in accordance

8    with the domestic or foreign policy objectives of the

9    Kingdom,” and “can be sued for [its] administrative acts in

10   the Board of Grievances, the administrative court of Saudi

11   Arabia.”

12       Based on this undisputed record, the Filler factors

13   indicate that the SHC is an organ of the Kingdom.    The SHC

14   was created for a national purpose (channeling humanitarian

15   aid to Bosnian Muslims); the Kingdom actively supervises it;

16   many SHC workers are Kingdom employees who remain on the

17   Kingdom’s payroll; the SHC holds the “sole authority” to

18   collect and distribute charity to Bosnia; and it can be sued

19   in administrative court in the Kingdom.

20       The Burnett Plaintiffs note the paucity of information

21   about the SHC’s ownership structure (a factor identified by

22   the Third Circuit in USX Corp), and argue that the district


                                     36
1    court gave this insufficient weight.     We do not see the

2    relevance of this factor here:     The SHC is a non-corporate

3    governmental entity that, like numerous agencies within our

4    own government, has no owners or shareholders.

5        Nor are we persuaded that the SHC waived its immunity

6    by identifying itself as “nongovernmental” on a registration

7    document filed with Bosnian authorities.    “We and other

8    courts have observed that ‘the implied waiver provision of

9    Section 1605(a)(1) must be construed narrowly.’”     Smith v.

10   Socialist People’s Libyan Arab Jamahiriya, 101 F.3d 239, 243

11   (2d Cir. 1996) (quoting Shapiro v. Republic of Bolivia, 930

12   F.2d 1013, 1017 (2d Cir. 1991)).    See also Cabiri, 165 F.3d

13   at 202 (declining to find waiver where defendant had “taken

14   no action that can be understood to demonstrate either an

15   objective or a subjective intent to waive immunity with

16   respect to [plaintiffs’] claims”); Frolova v. Union of

17   Soviet Socialist Republics, 761 F.2d 370, 378 (7th Cir.

18   1985) (explaining that “waiver would not be found absent a

19   conscious decision to take part in the litigation and a

20   failure to raise sovereign immunity despite the opportunity

21   to do so”).   Registering as a humanitarian organization in

22   Bosnia does not reflect a conscious decision by the SHC to


                                   37
1    waive its sovereign immunity in American courts.   The SHC’s

2    outside legal counsel in Bosnia avers that the term

3    “nongovernmental” on the registration documents refers to

4    whether the humanitarian organization is part of the

5    government of Bosnia, and that “[t]here is no prohibition

6    against humanitarian organizations that are part of foreign

7    governments operating in Bosnia-Herzegovina.”

8

9                                 IV

10       We next consider the plaintiffs’ arguments about the

11   applicability of two exceptions to the FSIA: the Torts

12   Exception and the Commercial Activities Exception.11

13       The FSIA lifts immunity for certain torts committed by

14   foreign sovereigns:



          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.
                                  38
 1             (a) A foreign state shall not be immune from
 2             the jurisdiction of courts of the United
 3             States or of the States in any case--
 4
 5             . . .
 6
 7                 (5) not otherwise encompassed in paragraph
 8                 (2) above,[12] in which money damages are
 9                 sought against a foreign state for
10                 personal injury or death, or damage to or
11                 loss of property, occurring in the United
12                 States and caused by the tortious act or
13                 omission of that foreign state or of any
14                 official or employee of that foreign state
15                 while acting within the scope of his
16                 office or employment; except this
17                 paragraph shall not apply to--
18
19                       (A) any claim based upon the exercise
20                       or performance or the failure to
21                       exercise or perform a discretionary
22                       function regardless of whether the
23                       discretion be abused, or
24
25                       (B) any claim arising out of
26                       malicious prosecution, abuse of
27                       process, libel, slander,
28                       misrepresentation, deceit, or
29                       interference with contract rights.
30
31   28 U.S.C. § 1605.   Congress enacted the Torts Exception “to

32   eliminate a foreign state’s immunity for traffic accidents

33   and other torts committed in the United States, for which

34   liability is imposed under domestic tort law.”   Argentine

35   Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439-



          12
            Paragraph (2) is the Commercial Activities
     Exception. See Section V, infra.
                                   39
1    40 (1989); see also MacArthur Area Citizens Ass’n v.

2    Republic of Peru, 809 F.2d 918, 921 (D.C. Cir. 1987)

3    (“[A]lthough cast in general terms, the ‘tortious act’

4    exception was designed primarily to remove immunity for

5    cases arising from traffic accidents.   This is scarcely to

6    say that the exception applies only to traffic accidents;

7    rather, the point is that the legislative history counsels

8    that the exception should be narrowly construed so as not to

9    encompass the farthest reaches of common law.” (internal

10   citations omitted)); Asociacion de Reclamantes v. United

11   Mexican States, 735 F.2d 1517, 1525 (D.C. Cir. 1984)

12   (Scalia, J.) (“The primary purpose of the ‘tortious act or

13   omission’ exception of § 1605(a)(5) was to enable officials

14   and employees of foreign sovereigns to be held liable for

15   the traffic accidents which they cause in this country,

16   whether or not in the scope of their official business.”).

17       The plaintiffs allege that the defendants’ tortious

18   conduct took the form of providing material support to

19   terrorists.   A different statutory exception—-the Terrorism

20   Exception-—governs precisely those activities.   The

21   Terrorism Exception (with some ellipses) is set out in the




                                   40
1   margin.13


          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)(I) 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 subclause (II), either remains
                     so designated 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

                     (II) 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 state sponsor 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,
                                    41
1

        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
                       42
1

        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 paragraph (1), (2), or (3),

    for personal injury or death caused by acts
    described in subsection (a)(1) 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,
                       43
1

2        Congress enacted the first iteration of the Terrorism

3    Exception in 1996 in order to “give American citizens an

4    important economic and financial weapon against . . . outlaw

5    states” that sponsor terrorism by providing “safe havens,

6    funding, training, supplying weaponry, medical assistance,

7    false travel documentation, and the like.”   H.R. Rep. No.

8    104-383, at 62 (1995).   An FSIA exception for terrorist acts

9    “had long been sought by victims’ groups,” but it “had been

10   consistently resisted by the executive branch,” which feared

11   that such an amendment to the FSIA “might cause other

12   nations to respond in kind, thus potentially subjecting the

13   American government to suits in foreign countries for

14   actions taken in the United States.”   Price v. Socialist

15   People’s Libyan Arab Jamahiriya, 294 F.3d 82, 89 (D.C. Cir.

16   2002).   The resulting provision, 28 U.S.C. § 1605(a)(7)



                    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. See Pub. 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.
                                   44
1    (repealed 2008) bore “notable features which reveal the

2    delicate legislative compromise out of which it was born,”

3    the primary one being that it applied only to designated

4    state sponsors of terrorism.   Id.    When Congress amended the

5    Terrorism Exception in 2008, that limitation was preserved.

6    28 U.S.C. § 1605A(a)(2)(A)(i)(I) (requiring that the foreign

7    state have been “designated as a state sponsor of terrorism”

8    by the State Department”).

9        The State Department has never designated the Kingdom a

10   state sponsor of terrorism.    As a consequence, the Terrorism

11   Exception is inapplicable here.     No plaintiff argues

12   otherwise.   But to apply the Torts Exception where the

13   conduct alleged amounts to terrorism within the meaning of

14   the Terrorism Exception would evade and frustrate that key

15   limitation on the Terrorism Exception.

16       By definition, the acts listed in the Terrorism

17   Exception are torts.   If the Torts Exception covered

18   terrorist acts and thus encompassed the conduct set forth in

19   the Terrorism Exception, there would be no need for

20   plaintiffs ever to rely on the Terrorism Exception when

21   filing suit.   An important procedural safeguard--that the

22   foreign state be designated a state sponsor of terrorism--


                                    45
1    would in effect be vitiated.    We decline to read the statute

2    in a way that would deprive the Terrorism Exception (or its

3    limitations) of meaning.     Williams v. Taylor, 529 U.S. 362,

4    404 (2000) (“It is . . . a cardinal principle of statutory

5    construction that we must give effect, if possible, to every

6    clause and word of a statute.” (internal citation and

7    quotation marks omitted)).     To assure that the FSIA serves

8    its purpose, its exceptions must be separately administered.

9        We and our sister circuits have repeatedly rejected

10   efforts to shoehorn a claim properly brought under one

11   exception into another.    See, e.g., Garb v. Republic of

12   Poland, 440 F.3d 579, 588 (2d Cir. 2006) (declining to

13   credit plaintiffs’ invocation of the Commercial Activities

14   Exception, which “simply recharacterize[d] plaintiffs’

15   ‘takings’ argument”); Chuidian, 912 F.2d at 1106 (“To hold

16   otherwise would be to allow plaintiffs to escape the

17   requirements of section 1605(a)(3) through artful

18   recharacterization of their takings claims.”); De Sanchez v.

19   Banco Cent. de Nicaragua, 770 F.2d 1385, 1399 (5th Cir.

20   1985) (“Because [the plaintiff’s] claim for conversion is in

21   essence a property rather than a tort claim, we hold that

22   [the Torts Exception] does not apply.”); Alberti v. Empresa


                                     46
1    Nicaraguense De La Carne, 705 F.2d 250, 254 (7th Cir. 1983)

2    (“The basis of this lawsuit is the nationalization of

3    Empacadora, which is a quintessential Government act.

4    Plaintiffs cannot transform this governmental dispute into a

5    commercial dispute through the simple expedient of

6    attempting to offset an unrelated commercial debt.”

7    (internal citations omitted)).

8        Plaintiffs’ textual argument focuses on the feature of

9    the Torts Exception that reinstates foreign sovereign

10   immunity for a particular class of torts: malicious

11   prosecution, abuse of process, libel, slander,

12   misrepresentation, deceit and interference with contract

13   rights.   28 U.S.C. § 1605(a)(5)(B).    The plaintiffs contend

14   that if Congress intended to do the same for “torture,

15   extrajudicial killing, aircraft sabotage, hostage taking, or

16   the provision of material support or resources,” 28 U.S.C. §

17   1605A, it could have done so explicitly.     Cf. Russello v.

18   United States, 464 U.S. 16, 23 (1983).     But the Terrorism

19   Exception applies “in any case not otherwise covered by this

20   chapter.”   28 U.S.C. § 1605A(a)(1).    In other words, the

21   Terrorism Exception stands alone.      If acts of terrorism are

22   considered torts for the purposes of the Torts Exception,


                                   47
1    then any claim that could be brought under the Terrorism

2    Exception could also be brought under the Torts Exception.

3    If this were so, the Terrorism Exception would be drained of

4    all force because every potential case would be “otherwise

5    covered by this chapter”--namely, the Torts Exception.      So,

6    claims based on terrorism must be brought under the

7    Terrorism Exception, and not under any other FSIA exception.

8        The plaintiffs predict that several untoward

9    consequences will flow from reading the Torts Exception not

10   to cover their claims.   Some of these concerns have been

11   remedied by the amended version of the Terrorism Exception,

12   as explained in the margin.14   The remainder overlook what is

13   at stake here: civil liability.      That a foreign sovereign is

14   immune to civil claims brought by the victims of its alleged

15   wrongdoing does not mean it has unfettered discretion to


          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).
                                     48
1    commit atrocities against United States nationals.

2    Deterrence (or punishment) does not begin and end with civil

3    litigation brought by individual plaintiffs.   Our government

4    has other means at its disposal--sanctions, trade embargos,

5    diplomacy, military action--to achieve its foreign policy

6    goals and to deter (or punish) foreign sovereigns.    Although

7    the FSIA did open an avenue of redress for certain

8    individual victims of state-sponsored terrorism, it did not

9    delegate to the victims, their counsel and the courts the

10   responsibility of the executive branch to make America’s

11   foreign policy response to acts of terrorism committed by a

12   foreign state, including whether federal courts may

13   entertain a victim’s claim for damages.

14       We therefore hold that the Torts Exception does not

15   apply here.15

16


          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.
                                  49
1                                     V

2        The Federal Plaintiffs characterize the defendants’

3    charitable contributions as a form of money laundering,

4    argue that money laundering is commercial in nature, and ask

5    us to conclude that the Commercial Activities Exception

6    defeats the defendants’ immunity for harm caused by their

7    charitable contributions.      The same analysis that renders

8    inapplicable the Torts Exception likewise defeats this

9    argument.     See Part IV.   Moreover, existing authorities make

10   clear that the Commercial Activities Exception does not

11   apply here.

12       The FSIA’s Commercial Activities Exception defeats

13   foreign sovereign immunity in cases

14               in which the action is based upon a commercial
15               activity carried on in the United States by
16               the foreign state; or upon an act performed in
17               the United States in connection with a
18               commercial activity of the foreign state
19               elsewhere; or upon an act outside the
20               territory of the United States in connection
21               with a commercial activity of the foreign
22               state elsewhere and that act causes a direct
23               effect in the United States.
24
25   28 U.S.C. § 1605(a)(2).      “Commercial activity” is defined as

26   “a regular course of commercial conduct or a particular

27   commercial transaction or act.”       28 U.S.C. § 1603(d).   The

28   next sentence advises that “the commercial character of an

                                      50
1    activity shall be determined by reference to the nature of

2    the course of conduct or particular transaction or act,

3    rather than by reference to its purpose.”   Id.   The Supreme

4    Court has criticized the circularity of this definition,

5    which

 6             leaves the critical term “commercial” largely
 7             undefined: The first sentence simply
 8             establishes that the commercial nature of an
 9             activity does not depend upon whether it is a
10             single act or a regular course of conduct; and
11             the second sentence merely specifies what
12             element of the conduct determines
13             commerciality (i.e., nature rather than
14             purpose), but still without saying what
15             “commercial” means.
16
17   Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612

18   (1992).   See also Saudi Arabia v. Nelson, 507 U.S. 349, 359

19   (1993) (“If this is a definition, it is one distinguished

20   only by its diffidence.”).

21       Happily, “the FSIA was not written on a clean slate.”

22   Weltover, 504 U.S. at 612.   Rather, it codified the

23   “restrictive” theory of foreign sovereign immunity used by

24   the State Department between 1952 and the passage of the

25   FSIA in 1976.   In a case decided in that era, the Supreme

26   Court explained (without disagreement from the dissenters)

27   that “[i]n their commercial capacities, foreign governments

28   do not exercise powers peculiar to sovereigns.    Instead,

                                   51
1    they exercise only those powers that can also be exercised

2    by private citizens.”     Alfred Dunhill of London, Inc. v.

3    Republic of Cuba, 425 U.S. 682, 704 (1976).    The Supreme

4    Court adhered to this standard in construing the FSIA:

5    “[W]hen a foreign government acts, not as regulator of a

6    market, but in the manner of a private player within it, the

7    foreign sovereign’s actions are ‘commercial’ within the

8    meaning of the FSIA.”     Weltover, 504 U.S. at 614; see also

9    Letelier v. Republic of Chile, 748 F.2d 790, 796, 797 (2d

10   Cir. 1984) (“Letelier II”) (inquiring into “whether the

11   activity is of the type an individual would customarily

12   carry on for profit,” or that of a “merchant in the

13   marketplace”).     The FSIA asks

14            not whether the foreign government is acting
15            with a profit motive or instead with the aim
16            of fulfilling uniquely sovereign objectives.
17            Rather, the issue is whether the particular
18            actions that the foreign state performs
19            (whatever the motive behind them) are the type
20            of actions by which a private party engages in
21            “trade and traffic or commerce.”
22
23   Weltover, 504 U.S. at 614 (citing Black’s Law Dictionary 270

24   (6th ed. 1990)).    So, regulation of “foreign currency

25   exchange is a sovereign activity . . . whereas a contract to

26   buy army boots or even bullets is a ‘commercial’ activity,

27   because private companies can similarly use sales contracts

                                        52
1    to acquire goods.”    Id. at 614-15.   In the same way, “a

2    foreign state’s exercise of the power of its police has long

3    been understood for purposes of the restrictive theory as

4    peculiarly sovereign in nature,” because “[e]xercise of the

5    powers of police and penal officers is not the sort of

6    action by which private parties can engage in commerce.”16

7    Nelson, 507 U.S. at 361-62.

8        With this distinction in mind, “our first task is to

9    identify what particular conduct in this case is relevant.”

10   Texas Trading & Milling Corp. v. Fed. Republic of Nigeria,

11   647 F.2d 300, 308 (2d Cir. 1981); see also Nelson, 507 U.S.

12   at 356 (“We begin our analysis by identifying the particular

13   conduct on which the [plaintiffs’] action is ‘based’ for


          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.
                                    53
1    purposes of the Act.”).     The Federal Plaintiffs focus on

2    what they term “the sovereign defendants’ money laundering

3    activities on behalf of al Qa[e]da,” and argue that the law

4    draws no bright line between “commercial” activities that

5    are legitimate and those that are criminal.    We understand

6    the Federal Plaintiffs’ argument to be as follows: the

7    defendants donated money to charities with the intent that

8    it be funneled to terrorist organizations which, in turn,

9    would use that money to purchase the plane tickets,

10   communications devices and weapons necessary to orchestrate

11   the September 11 attacks.

12       This argument fails because “it goes to purpose, the

13   very fact the Act renders irrelevant to the question of an

14   activity’s commercial character.”     Nelson, 507 U.S. at 363.

15   It does not matter that the defendants made (and oversaw)

16   donations to charities with a specific intent as to where

17   those donations would end up.     The alleged conduct itself--

18   giving away money--is not a commercial activity.     Granted,

19   donating to charities is among “those powers that can also

20   be exercised by private citizens,’” Alfred Dunhill, 425 U.S.

21   at 704,--unlike (say) “participation in a foreign assistance

22   program administered by the Agency for International

                                     54
1    Development . . . whose essential nature is public or

2    governmental,” House Report at 16.    But inquiry under the

3    Commercial Activities Exception is not just whether the act

4    was public (jure imperii) or private (jure gestionis); it

5    also matters “whether the particular actions that the

6    foreign state performs (whatever the motive behind them) are

7    the type of actions by which a private party engages in

8    ‘trade and traffic or commerce.’”     Weltover, 504 U.S. at

9    614.    In this context, the Four Princes’ donations to

10   charity are not part of the trade and commerce engaged in by

11   a “merchant in the marketplace.”     Letelier II, 748 F.2d at

12   796.    Consequently, the Commercial Activities Exception does

13   not apply.17

14

15                                  VI

16          The remaining issue is the district court’s personal

17   jurisdiction over the Four Princes in their personal

18   capacities, and over Prince Mohamed (who is sued in no other



            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.
                                    55
1    capacity).   The plaintiffs have the burden of showing that

2    these individuals have “certain minimum contacts with [the

3    United States] such that the maintenance of the suit does

4    not offend traditional notions of fair play and substantial

5    justice.”    Int’l Shoe Co. v. Washington, 326 U.S. 310, 316

6    (1945) (internal quotation marks omitted).    See Bank

7    Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d

8    779, 784 (2d Cir. 1999) (where the defendants have moved to

9    dismiss for lack of personal jurisdiction, “the plaintiff

10   bears the burden of establishing that the court has

11   jurisdiction over the defendant”); Metro. Life Ins. Co. v.

12   Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996)

13   (same).   “In determining whether a plaintiff has met this

14   burden, we will not draw ‘argumentative inferences’ in the

15   plaintiff’s favor.”   Robinson v. Overseas Military Sales

16   Corp., 21 F.3d 502, 507 (2d Cir. 1994) (quoting Atl. Mut.

17   Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198

18   (2d Cir. 1992)).   Moreover, “we are not bound to accept as

19   true a legal conclusion couched as a factual allegation.”

20   Jazini v. Nissan Motor Corp., 148 F.3d 181, 185 (2d Cir.

21   1998) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

22       Due process mandates that a defendant’s “conduct and


                                    56
1    connection with the forum State are such that he should

2    reasonably anticipate being haled into court there.”     World-

3    Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).

4    The “‘fair warning’ requirement is satisfied if the

5    defendant has ‘purposefully directed’ his activities at

6    residents of the forum, and the litigation results from

7    alleged injuries that ‘arise out of or relate to’ those

8    activities.”    Burger King Corp. v. Rudzewicz, 471 U.S. 462,

9    472-73 (1985) (quoting Keeton v. Hustler Magazine, Inc., 465

10   U.S. 770, 774 (1984) and Helicopteros Nacionales de

11   Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)).     Put

12   differently, personal jurisdiction is proper where the

13   defendant took “intentional, and allegedly tortious, actions

14   . . . expressly aimed” at the forum state.      Calder v. Jones,

15   465 U.S. 783, 789 (1984); see also In re Magnetic Audiotape

16   Antitrust Litig., 334 F.3d 204, 208 (2d Cir. 2003) (citing

17   Calder for proposition that a “court may exercise personal

18   jurisdiction over defendant consistent with due process when

19   defendant is a primary participant in intentional

20   wrongdoing--albeit extraterritorially--expressly directed at

21   forum”).   Mere foreseeability of harm in the forum state is

22   insufficient.   Burger King, 471 U.S. at 474.


                                    57
1

2                                  A

3        The plaintiffs rely on five opinions from other

4    circuits for the idea that the Four Princes’ alleged

5    involvement in a terrorist attack on a citizen of the United

6    States constitutes purposeful direction at this forum, “such

7    that [they] should reasonably anticipate being haled into

8    court” here.   Burger King, 471 U.S. at 474.   But those cases

9    all addressed defendants who were primary participants in

10   terrorist acts.   In Mwani v. bin Laden, 417 F.3d 1 (D.C.

11   Cir. 2005), the court exercised personal jurisdiction over

12   al Qaeda and Osama bin Laden for injuries arising out of the

13   bombing of our embassies in Kenya and Tanzania, reasoning

14   that their “decision to purposefully direct their terror at

15   the United States, and the fact that the plaintiffs’

16   injuries arose out of one of those terrorist activities,

17   should suffice to cause the defendants to ‘reasonably

18   anticipate being haled into’ an American court.”    Id. at 14

19   (quoting Burger King, 471 U.S. at 474).   Similarly, the

20   defendant in Morris v. Khadr, 415 F. Supp. 2d 1323 (D. Utah

21   2006), was an al Qaeda member who “actively participated in

22   and helped plan al Qaeda’s terrorist agenda--so much so, in


                                   58
1    fact, that he convinced his son to risk his life and attack

2    American soldiers” in Afghanistan, killing the plaintiffs’

3    relatives in the course of engagement.   Id. at 1336.   Two

4    other cases dealt with civil claims against Libya (a

5    designated state sponsor of terrorism) and its intelligence

6    service for the bombing of commercial airplanes.     Pugh v.

7    Socialist People’s Libyan Arab Jamahiriya, 290 F. Supp. 2d

8    54, 59 (D.D.C. 2003) (“[T]he individual defendants . . .

9    conspired to sabotage and succeeded in destroying a civilian

10   commercial aircraft filled to capacity . . . on an

11   international flight and expected to stop in several nations

12   before reaching its final destination, [and so] the

13   individual defendants could and should have reasonably

14   postulated that passengers of many nationalities would be on

15   board, from which they could also expect they might be haled

16   into the courts of those nations whose citizens would

17   die.”); Rein v. Socialist People’s Libyan Arab Jamahiriya,

18   995 F. Supp. 325, 330 (E.D.N.Y. 1998) (“This case concerns

19   the destruction [by Libya and its agents] of a United States

20   flag aircraft, which was manufactured and ow[n]ed by United

21   States corporations, while en route to the United States on

22   a regularly scheduled flight with 189 United States


                                  59
1    nationals on board.”).   Finally, in Daliberti v. Republic of

2    Iraq, 97 F. Supp. 2d 38 (D.D.C. 2000), the court exercised

3    jurisdiction over Iraq (then designated a state sponsor of

4    terrorism) for conduct within the Terrorism Exception.       The

5    court reasoned that the abuse of the American plaintiffs

6    “had a direct effect in the United States and was

7    consciously designed to affect United States policy.    Under

8    the circumstances, Iraq cannot now claim surprise at the

9    assertion of jurisdiction by this Court over claims brought

10   in response to its actions.”   Id. at 54.

11       The plaintiffs do not allege that the Four Princes

12   directed the September 11 attacks or commanded an agent (or

13   authorized al Qaeda) to commit them.    Cf. Calder, 465 U.S.

14   at 790 (affirming that court could exercise personal over

15   “primary participants in an alleged wrongdoing intentionally

16   directed at a California resident” (emphasis added)).

17   Rather, the plaintiffs rely on a causal chain to argue a

18   concerted action theory of liability: the Princes supported

19   Muslim charities knowing that their money would be diverted

20   to al Qaeda, which then used the money to finance the

21   September 11 attacks.    Cf. Halberstam v. Welch, 705 F.2d

22   472, 478 (D.C. Cir. 1983) (distinguishing between civil


                                    60
1    conspiracy and aiding-abetting liability under the common

2    law of torts); Boim v. Quranic Literacy Inst., 291 F.3d

3    1000, 1028 (7th Cir. 2002) (defining extent to which

4    charities’ alleged provision of material support to Hamas

5    constituted an act of “international terrorism” such that

6    charities could be civilly liable for injuries caused by

7    Hamas).

8        Even if the Four Princes were reckless in monitoring

9    how their donations were spent, or could and did foresee

10   that recipients of their donations would attack targets in

11   the United States, that would be insufficient to ground the

12   exercise of personal jurisdiction.   See Burger King, 471

13   U.S. at 474 (“Although it has been argued that

14   foreseeability of causing injury in another State should be

15   sufficient to establish such contacts there when policy

16   considerations so require, the Court has consistently held

17   that this kind of foreseeability is not a ‘sufficient

18   benchmark’ for exercising personal jurisdiction.” (internal

19   footnote omitted)).   Rather, the plaintiffs have the burden

20   of showing that the Four Princes engaged in “intentional,

21   and allegedly tortious, actions . . . expressly aimed” at

22   residents of the United States.    Calder, 465 U.S. at 789.


                                   61
1        That burden is not satisfied by the allegation that the

2    Four Princes intended to fund al Qaeda through their

3    donations to Muslim charities.     Even assuming that the Four

4    Princes were aware of Osama bin Laden’s public announcements

5    of jihad against the United States and al Qaeda’s attacks on

6    the African embassies and U.S.S. Cole, their contacts with

7    the United States would remain far too attenuated to

8    establish personal jurisdiction in American courts.     It may

9    be the case that acts of violence committed against

10   residents of the United States were a foreseeable

11   consequence of the princes’ alleged indirect funding of al

12   Qaeda, but foreseeability is not the standard for

13   recognizing personal jurisdiction.    Rather, the plaintiffs

14   must establish that the Four Princes “expressly aimed”

15   intentional tortious acts at residents of the United States.

16   Calder, 465 U.S. at 789.   Providing indirect funding to an

17   organization that was openly hostile to the United States

18   does not constitute this type of intentional conduct.     In

19   the absence of such a showing, American courts lacked

20   personal jurisdiction over the Four Princes.

21

22


                                   62
1                                  B

2        It is alleged that in his capacity as an executive of

3    various private banks, Prince Mohamed knowingly and

4    intentionally provided material support to terrorists who,

5    in turn, planned to attack the United States.   The

6    allegations are as follows.

7        Until 2002, Mohamed served as the Chairman and CEO of

8    DMI, a bank headquartered in Switzerland with operations

9    throughout the world.   “DMI has actively sponsored and

10   supported the al Qa[e]da movement through several of its

11   subsidiaries, including but not limited to the Islamic

12   Investment Company of the Gulf, the Faisal Islamic Bank of

13   Bahrain, Faisal Finance, Tadamon Islamic Bank, and Al Shamal

14   Islamic Bank.”   DMI and its subsidiaries conform to sharia,

15   the principle under Islamic law that “prohibits the earning

16   or payment of interest.”   The plaintiffs ask the Court to

17   draw a “reasonable inference” that because of sharia, there

18   exists “an active, not passive, relationship among an

19   Islamic bank, its owners, and its large depositors.”    In

20   other words, the owners of DMI and its subsidiaries “are

21   close business partners with bank ‘customers’ in a

22   partnership or collaboration to manage and invest customers’


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1    capital in a mutually beneficial way.”    Osama bin Laden, his

2    bodyguard, and other al Qaeda operatives had deposits with

3    DMI and its subsidiaries.   (Also, bin Laden himself invested

4    $50 million in one of DMI’s subsidiaries.)    Therefore, argue

5    the plaintiffs, the September 11 attacks “were a direct

6    result of the material support that Prince Mohamed . . .

7    provided al Qaeda.”

8        Mohamed disputes this characterization of sharia

9    banking; but even assuming its accuracy, it does not reflect

10   that Mohamed engaged in “intentional” conduct “expressly

11   aimed at the United States.   Calder, 465 U.S. at 789.    It

12   may be that, but for access to financial institutions, al

13   Qaeda could not have funded its terrorist attacks.    But that

14   does not mean that the managers of those financial

15   institutions “purposefully directed” their “activities at

16   residents of [this] forum.”   Burger King, 471 U.S. at 472.

17   Moreover, Mohamed himself was never a director, officer,

18   shareholder or employee of the banks that purportedly held

19   terrorists’ deposits.   He is related to those institutions

20   only insofar as the Faisal Islamic Bank of Bahrain (which he

21   once managed) invested in them.    For the same reasons

22   explained above, we decline to read Mwani, Morris, Pugh,


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1    Daliberti and Rein, supra, to say that the provision of

2    financial services to an entity that carries out a terrorist

3    attack on United States citizens could make Prince Mohamed,

4    in the circumstances presented here, subject to the

5    jurisdiction of American courts.

6        The Ashton Plaintiffs argue in passing that we can

7    impute the banks’ actions to Mohamed, subjecting him to

8    personal jurisdiction in the United States.    This argument

9    relies on Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460

10   (1988), which held that the “fiduciary shield doctrine” does

11   not defeat personal jurisdiction under New York’s long-arm

12   statute.   Id. at 472.    The fiduciary shield doctrine deems

13   it “unfair to subject a corporate employee personally to

14   suit in a foreign jurisdiction when his only contacts with

15   that jurisdiction have been undertaken on behalf of his

16   corporate employer.”     Id. at 467-68; Marine Midland Bank,

17   N.A. v. Miller, 664 F.2d 899, 902 n.3 (2d Cir. 1981) (“The

18   fiduciary shield doctrine is not a constitutional principle,

19   but is rather a doctrine based on judicial inference as to

20   the intended scope of the long arm statute.”).

21   Consequently, jurisdiction was held proper in Kreutter over

22   an individual who, as a primary actor, “represented two


                                     65
1    corporations during their participation in purposeful

2    corporate acts” in the state.    Kreutter, 712 N.Y.2d at 470.

3        Kreutter is plainly inapposite.     There is no allegation

4    that Mohamed served as the “primary actor” or

5    “representative” of a foreign corporation that transacted

6    business within the United States.    Instead, the Ashton

7    Plaintiffs allege that Mohamed was the “primary actor” who

8    “ran, directed or controlled” various banks in the Kingdom,

9    Switzerland and the Sudan.   It may be that Mohamed was a

10   “primary actor” with regard to the operations of certain

11   foreign banks that conducted business with al Qaeda.

12   However, none of those business dealings are alleged to have

13   taken place in the United States—-unlike the “purposeful

14   corporate acts” that took place in New York in Kreutter.     71

15   N.Y. 2d at 470.   Because the transactions that Mohamed

16   allegedly supervised had no direct contact with the United

17   States, Mohamed was not a “primary actor” in any transaction

18   that would cause him to be subject to the jurisdiction of

19   American courts pursuant to Kreutter.

20       We affirm the district court’s dismissal of all claims

21   against Mohamed for lack of personal jurisdiction.

22


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1                                  C

2        The plaintiffs challenge the district court’s denial of

3    their motions for jurisdictional discovery.   “Since

4    [Plaintiffs] did not establish a prima facie case that the

5    district court had jurisdiction over [the defendants], the

6    district court did not err in denying discovery on that

7    issue.”   Jazini, 148 F.3d at 186.

8

9                              CONCLUSION

10       For the foregoing reasons, we affirm.




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