Neglected Consequences of the Terrorism Exception to the Foreign Sovereign Immunities Act

By Rocklage, Andrew | Suffolk Transnational Law Review, Summer 2013 | Go to article overview

Neglected Consequences of the Terrorism Exception to the Foreign Sovereign Immunities Act


Rocklage, Andrew, Suffolk Transnational Law Review


Leibovitch v. Islamic Republic of Iran, 697 F.3d 561 (7th Cir. 2012).

The Foreign Sovereign Immunities Act (FSIA) provides the sole basis for asserting jurisdiction over foreign nations in United States courts, declaring, "[a] foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided." (1) The terrorism exception of the FSIA abrogates this general immunity when a foreign state commits, or provides material support for the commission of, a terrorist act and that act results in the death or injury of a United States citizen. (2) In Leibovitch v. Islamic Republic of Iran, (3) the United States Court of Appeals for the Seventh Circuit considered whether, under the FSIA terrorism exception, subject-matter jurisdiction exists over emotional distress claims brought by the foreign-national family members of a U.S. citizen arising out of injuries inflicted in a terrorist attack. (4) The Seventh Circuit held subject-matter jurisdiction existed, reversing the United States District Court for the Northern District of Illinois, and resolving a previously unanswered question. (5)

On June 17, 2003, members of the Leibovitch family were traveling through Israel in an area bordering the West Bank. (6) The Leibovitch family was traveling with S.L., a three-year-old American citizen, despite West Bank travel warnings from both the United States Department of State Bureau of Consular Affairs and the United States Department of State Bureau of Diplomatic Security. (7) Members of the Palestine Islamic Jihad (PIJ) crossed over from the West Bank into Israel and fired upon the Leibovitch's minivan. (8) S.L. was severely injured by gunfire. (9) S.L.'s foreign national grandparents and two other siblings survived the attack but witnessed the grave injuries inflicted upon S.L. (10)

The Leibovitch family brought suit against the Islamic Republic of Iran and its Ministry of Information and Security (collectively "Iran") in the United States District Court for the Northern District of Illinois seeking damages on behalf of each family member, none of whom are United States citizens. (11) The district court determined that S.L. was injured in "an act of ... extrajudicial killing" under the FSIA exception for terrorism. (12) However, the district court dismissed all claims raised by the members of the Leibovitch family, other than S.L., for lack of subject-matter jurisdiction. (13) Members of the Leibovitch family appealed, arguing their individual claims warranted subject-matter jurisdiction under Israeli law for intentional infliction of emotional distress arising from S.L.'s injury. (14) The Seventh Circuit reversed, holding the terrorism exception confers original jurisdiction over so-called "pass-through" claims brought by family members under foreign sources of law for harm caused by the injury of an American relative. (15)

As described below, the debate between Congress and the federal courts has convoluted the overall scope and appropriate interpretation of the aforementioned statutory exception. (16) As part of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Congress initially amended the FSIA to add an exception for state sponsorship of certain acts of terrorism. (17) The language of the original terrorism exception left unresolved whether Congress intended this exception to create a federal private right of action. (18) In the absence of a substantive private right of action from a statute, plaintiffs must rely on underlying state or foreign law for a possible exception to sovereign immunity. (19) As a result, FSIA plaintiffs' reliance on a cause of action found in state or foreign tort law has been referred to as the "pass-through" approach. (20)

This unresolved private right of action encouraged Congress to enact a new provision creating a federal cause of action for plaintiffs against agents and officers of states that sponsor terrorism, known as the Flatow Amendment. …

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Neglected Consequences of the Terrorism Exception to the Foreign Sovereign Immunities Act
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