Kilburn v. Libya: cause for alarm?

• Author: Townley, Stephen

In Kilburn v. Libya, the D.C. Circuit held that a plaintiff may turn to United States courts to seek recovery from a foreign nation for injuries suffered at the hands of a terrorist organization with which the foreign nation was affiliated--if actions taken by that foreign nation were a proximate cause of the plaintiffs injury. (1) Kilburn is part of an emerging pattern. Over the past ten years, Congress and the courts have made it increasingly easy for plaintiffs to secure compensation from foreign nations for injuries arising out of terrorist acts. (2) In particular, courts have liberally interpreted the state sponsor of terrorism amendment to the Foreign Sovereign Immunities Act of 1976 (FSIA), which permits plaintiffs to sue those nations designated as state sponsors of terrorism (3) for damages in U.S. courts. (4)

Yet Kilburn also broke with prior cases. Kilburn involved an unusual set of facts and resolved the questions they presented in atypical fashion. Prior to Kilburn, most cases brought pursuant to the terrorism amendment had involved terrorist acts committed directly by a foreign nation or instigated by a foreign nation and committed by that nation's agent. (5) Kilburn, by contrast, involved damage done by a nonstate actor who received material support and resources from the defendant nation (6) but who was not its agent. (7) Moreover, prior to Kilburn, courts had seldom permitted plaintiffs to seek relief for injuries foreign nations had not specifically intended to cause. (8) Indeed, the United States, appearing as amicus curiae in Kilburn, asserted that it was not clear from existing case law that "the allegation of a foreign state's general support for the terrorist group that carried out the act of terrorism is sufficient to satisfy the statute." (9) The Kilburn court, by contrast, adopted a more relaxed, proximate cause standard for jurisdiction. (10)

This Comment argues that Kilburn is inconsistent with the FSIA scheme. I do not weigh the merits of the Kilburn causation standard on its own terms. (11) Rather, I contend that Kilburn will lead to extensive jurisdictional discovery. Permitting such discovery not only would create a disjunction between foreign sovereign immunity practice on the one hand and domestic sovereign immunity practice and international law on the other, but it also might frustrate Congress's goals in passing the terrorism amendment. I begin by explaining why the adoption of the Kilburn standard makes it more likely that courts will engage in jurisdictional discovery. In Part II, I elucidate the history of the FSIA and use that history to demonstrate why extensive jurisdictional discovery is incompatible with the FSIA. Finally, in Part III, I offer alternatives to the Kilburn standard.

1. KILBURN AND JURISDICTIONAL DISCOVERY

   Kilburn is likely to provoke extensive jurisdictional discovery--discovery "[t]o determine whether the defendant is immune from suit." (12) Such discovery is likely when the exception to sovereign immunity that the plaintiff wishes to invoke (13) is legally or factually difficult for her to justify or is susceptible to a defendant's attack.

   The FSIA lifts foreign sovereign immunity with respect to several different categories of action. (14) A prospective plaintiff must plead facts sufficient to fit her case into one of these categories. (15) In assessing whether a plaintiff has managed to do so, courts sometimes need only engage in straightforward legal analysis, as when the category the plaintiff invokes requires them to discern whether an alleged act constitutes torture. (16) Sometimes, however, courts have to parse complicated facts (17) or apply ambiguous legal standards. (18) The Kilburn holding--that plaintiffs need only plead proximate cause in order to invoke the court's jurisdiction--will require courts to engage in complicated factual inquiries. For example, courts will have to follow convoluted money trails and understand the relationships between various terrorist cells. (19) Moreover, proximate cause is a more ambiguous legal standard than intent or knowledge, further complicating the judicial task. (20)

   My fear--that Kilburn will provoke more jurisdictional discovery--is not unfounded. (21) Last year, the D.C. Circuit had to consider how much jurisdictional discovery to permit in the aftermath of Kilburn. (22)

2. THE INCOMPATIBILITY OF JURISDICTIONAL DISCOVERY WITH THE FSIA AND THE TERRORISM AMENDMENT

   Extensive jurisdictional discovery is inconsistent with the general purposes of the FSIA scheme and with the specific purposes of the terrorism amendment. Congress passed the FSIA to make foreign sovereign immunity track U.S. sovereign immunity. (23) Accordingly, most courts to consider the FSIA's tort exception have read it as congruent with the Federal Tort Claims Act. (24) But the United States would never submit to extensive jurisdictional discovery on the basis of an allegation that an act or omission by a U.S. official was the proximate cause of torture or other egregious injury. In Arar v. Ashcroft, for example, a suit brought by a Canadian-Syrian dual citizen allegedly rendered to Syria by the United States, the United States has opposed discovery on the causation issue. (25) Requiring a foreign nation to submit to discovery to which the U.S. would not accede violates the principle of congruity underlying the FSIA.

   Congress also hoped that the FSIA would square U.S. practice with international law, (26) but jurisdictional discovery, because it can violate customary international law, (27) may vitiate that hope. First, it potentially infringes the comity of nations. (28) Foreign law may forbid disclosure of documents plaintiffs need for discovery. (29) Therefore, if a U.S. court orders production in such situations, it overrides foreign law. This contravenes principles of comity and is disapproved by U.S. jurists (30) and other nations. (31) Second, jurists and nations agree on the need to limit the jurisdictional discovery required of foreign sovereigns because of dignity concerns. In In re Papandreou, the D.C. Circuit cited international practice and refused to permit the district court to order...