9/11 victims seek revival of Saudi Arabia case at 2nd Circuit


By Nate Raymond

NEW YORK (Reuters) - A U.S. appeals court weighed on Wednesday whether to revive claims by families of victims of the Sept. 11 attacks that allege Saudi Arabia provided material support to al Qaeda.

The plaintiffs, who also include insurers and companies that paid billions of dollars in property damages, asked the 2nd U.S. Circuit Court of Appeals to revive their lawsuit. The request follows a 2011 ruling that allowed similar claims to proceed against Afghanistan.

"The equities require we get this relief," Stephen Cozen, a lawyer for the plaintiffs, told a three-judge panel.

Michael Kellogg, a lawyer for Saudi Arabia, argued that the plaintiffs had their chance, going all the way to the U.S. Supreme Court after their lawsuit was dismissed.

Courts have repeatedly held that a change in the law is no reason to reopen a case, he said.

"The defendants here are entitled to finality," he said.

Victims of the 9/11 attacks began filing lawsuits against Saudi Arabia and alleged al Qaeda operatives and supporters starting in 2002. The cases were consolidated in 2003.

The plaintiffs alleged that charities acting as agents of Saudi Arabia knowingly provided funding and support to al Qaeda.

In 2005 U.S. District Judge Richard Casey in Manhattan dismissed the claims, finding Saudi Arabia was immune under the Foreign Sovereign Immunities Act (FSIA) of 1976. The 2nd Circuit upheld the dismissal in 2008, and the Supreme Court denied a petition to take the case up in 2009.

The plaintiffs' new bid to revive their case followed a ruling in November 2011 by a different 2nd Circuit panel in a related case against Afghanistan, which was also alleged to have supported al Qaeda.

In the decision, the appellate court allowed the lawsuit against Afghanistan to proceed. The 2nd Circuit acknowledged its ruling was inconsistent with the same court's 2008 decision in connection with Saudi Arabia, and after circulating its opinion to other judges not on the panel and receiving no objection, it overruled the earlier decision.

In December 2011, the plaintiffs suing Saudi Arabia filed a motion seeking to vacate the judgments favoring Saudi Arabia and a charity also named as a defendant.

In March 2012, U.S. District Judge George Daniels denied the motion, giving rise to the appeal heard Wednesday. Daniels took over the case following Casey's death in 2007.

At Wednesday's arguments, Circuit Judge Chester Straub asked if the court were to agree that Daniels abused his discretion in denying their request to vacate the judgments, whether the court could decide other issues in the case.

He said one particular aspect of the case "intrigues me," specifically "whether the entire tort occurred in the United States."

Under an exemption of FSIA, plaintiffs may seek damages arising out of injuries or death occurring in the United States and caused by foreign countries.

Cozen, the plaintiffs' lawyer, said not only the tort took place in the United States, as evidenced by the attacks themselves, but so did some of the conduct leading up to the attacks.

In particular, he cited a Saudi intelligence officer who allegedly provided assistance to two 9/11 hijackers.

"The whole tort did take place in the United States," he said.

In addition to Straub, the panel included Circuit Judges José Cabranes and Ralph Winter. Cabranes was on both the 2008 panel that upheld the lawsuit's dismissal originally and also on the one that reinstated the Afghanistan case in 2011.

The case is In re Terrorist Attacks on September 11, 2011, 2nd U.S. Circuit Court of Appeals, No. 12-1318.

For the plaintiffs: Stephen Cozen, Cozen O'Connor.

For Saudi Arabia: Michael Kellogg, Kellogg, Huber, Hansen, Todd, Evans & Figel.