Second Circuit Appeal Criticizes District Court’s Narrow Construction of ATA, ATS, and TVPA in 9/11 Terrorism Lawsuit

In re: TERRORIST ATTACKS ON SEPTEMBER 11, 2001., 2012 WL 257568 (2012) (“ATA”), the Alien Tort Statute (“ATS”), the Torture Victims Protection Act (““TVPA”), and common law claims including negligence and various intentional torts. In each instance, the court mistakenly narrowed the scope of legal relief afforded by statute or the common law. In certain instances, it compounded that error by failing to give effect to plaintiffs’ pleadings. And throughout, the court understated and failed to acknowledge the direct nexus between the persons who facilitate an act of international terror through the provision of funding or other support, the persons who personally plan and execute a particular terrorist attack, and the persons harmed by that attack. All these errors were evident in the court’s treatment of the ATA claims. Congress intended the ATA to provide relief broadly for U.S. citizens injured by an act of international terrorism, and the district court acknowledged that recovery could be predicated on the provision of material support to a terrorist organization such as al-Qaeda when the supporter knows the nature of the recipient. The court concluded, *60 however, that plaintiffs had insufficiently pled facts establishing that defendants knew that it was al-Qaeda they were supporting. The court could reach this conclusion only by applying a clearly incorrect legal standard (requiring “extra-careful scrutiny” of terrorism allegations) and failing to acknowledge plaintiffs’ extensive allegations of defendants’ knowledge and facts making those allegations plausible. The court also failed to draw obvious, much less reasonable, inferences from plaintiffs’ allegations that placed each defendant at the center of a web of dealings with al-Qaeda members and their closest associates, and it even weighed evidence at the motion to dismiss stage, discounting important documents that had been credited by the U.S. government and independent experts. And further, the court misconstrued and arbitrarily limited the ATA, and ignored plaintiffs’ pleadings, in disregarding -- as “too remote” -- allegations that two defendants had provided extensive support to al-Qaeda in the mid-1990s. The district court adopted different, but no less improper, narrowing constructions of the Alien Tort Statute and the TVPA. The Alien Tort Statute provides a cause of action for certain violations of international law, and the court concluded that the only relevant international law norm *61 related to the hyacking of commercial airplanes. Plaintiffs had, however, pled that the relevant international law norm proscribes acts of international terrorism, which basic principles of customary international law, a considerable range of judicial decisions, and the determinations of Congress and the Executive Branch all establish as acts that violate international law for purposes of establishing an ATS claim. While plaintiffs perhaps did not adequately allege a nexus between defendants’ acts and hijacking, their allegations were clearly adequate in relation to acts of international terrorism. Similarly, the TVPA permits terrorism-related claims to be brought against “individuals,” which the district court construed as limited to natural persons and thus excluding commercial and other entities. That conclusion was incorrect, as this Court has already indicated, and in any event the U.S. Supreme Court is expected soon to offer definitive guidance on this point. As to plaintiffs’ common law claims, the district court declined to apply hornbook tort principles in concluding that defendants owed no “duty of care” to plaintiffs, who thus could not recover for claims predicated on Defendants’ negligence. It also misapplied the statute of limitation to bar recovery on tort claims by certain plaintiffs. Although *62 acknowledging that an adequately pled claim under the ATA (an intentional tort) would also suffice to establish the predicate for the common law intentional torts, the court failed as noted above to recognize that plaintiffs’ ATA claims were more than amply pled. Its dismissal of those claims, too, was thus erroneous. Finally, a change of law since the filing of notices of appeal requires vacatur of the district court’s decision dismissing three defendants. The district court applied an aspect of this Court’s decision in Terrorist Attacks IIT that has since been overruled by a subsequent decision as a result of this Circuit’s “mini-en band” process. Because those dismissals were based on the overruled portion of the opinion, and because the Court must apply current law to a pending appeal, the orders dismissing those defendants should be vacated so that the district court can apply current law to defendants’ motions. Standard of Review The Second Circuit “review[s] de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.” Amaker v. N.Y. State Dep’t of *63 Corr. Servs., 435 F. App’x 52, 54 (2d Cir. 2011) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)). WESTLAW HOUSE_OVERSIGHT_023384