Supreme Court of the United States ______

No. __-____

IN THE Supreme Court of the United States ______

KINGDOM OF SAUDI ARABIA AND SAUDI HIGH COMMIS- SION FOR RELIEF OF BOSNIA & HERZEGOVINA, Petitioners, v.

FEDERAL INSURANCE COMPANY, ET AL., Respondents. ______

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit ______

PETITION FOR A WRIT OF CERTIORARI ______

LAWRENCE S. ROBBINS MICHAEL K. KELLOGG ROY T. ENGLERT, JR. Counsel of Record ROBBINS, RUSSELL, ENGLERT, GREGORY G. RAPAWY ORSECK, UNTEREINER BRENDAN J. CRIMMINS & SAUBER LLP WILLIAM J. RINNER 1801 K Street, N.W. KELLOGG, HUBER, HANSEN, Suite 411 TODD, EVANS & FIGEL, Washington, D.C. 20006 P.L.L.C. (202) 775-4500 1615 M Street, N.W. Counsel for Saudi High Suite 400 Commission for Relief of Washington, D.C. 20036 Bosnia & Herzegovina (202) 326-7900 Counsel for The Kingdom of Saudi Arabia March 19, 2014

QUESTION PRESENTED Whether (as the court of appeals held) the district court was required as a matter of law to reopen an eight-year-old final judgment based on a change in circuit precedent that affected only one of several grounds for concluding that a foreign sovereign and its instrumentality were immune from suit under the Foreign Sovereign Immunities Act of 1976.

PARTIES TO THE PROCEEDINGS Petitioners The Kingdom of Saudi Arabia and the Saudi High Commission for Relief of Bosnia & Herzegovina were Defendants in the district court proceedings and Appellees in the court of appeals proceedings. Respondents were Plaintiffs and Appellants in the following district court and court of appeals proceedings: Plaintiffs in Federal Insurance Co., et al. v. Al Qaida, et al., No. 03-CV-6978 (GBD), and Appellants in No. 12-1318-cv: Federal Insurance Company Pacific Indemnity Company Chubb Custom Insurance Company Chubb Indemnity Insurance Company Chubb Insurance Company of Canada Chubb Insurance Company of New Jersey Great Northern Insurance Company Vigilant Insurance Company Zurich American Insurance Company American Guarantee and Liability Insurance Company American Zurich Insurance Company Assurance Company of America Colonial American Casualty and Surety Insurance Company Fidelity and Deposit Company of Maryland Maryland Casualty Company Northern Insurance Company of New York Steadfast Insurance Company

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Valiant Insurance Company One Beacon Insurance Company One Beacon America Insurance Company American Employers’ Insurance Company The Camden Fire Insurance Association Homeland Insurance Company of New York Crum & Forster Indemnity Company North River Insurance Company United States Fire Insurance Company American Alternative Insurance Corporation Great Lakes Reinsurance U.K. PLC The Princeton Excess & Surplus Lines Insurance Company Amlin Underwriting, Ltd. Hiscox Dedicated Corporate Member, Ltd. Allstate Insurance Company Boston Old Colony Insurance Company Continental Insurance Company Commercial Insurance Company of Newark, N.J. CNA Casualty of California Continental Insurance Company of New Jersey Fidelity and Casualty Company of New York Glens Falls Insurance Company National Ben Franklin Insurance Company of Illinois Seneca Insurance Company, Inc. TIG Insurance Company ACE Global Market Syndicate 2488 a/k/a Ace Global Market

Plaintiffs in Vigilant Insurance Co., et al. v. Kingdom of Saudi Arabia, et al., No. 03-CV-8591 (GBD) (FM), and Appellants in No. 12-1318-cv: Vigilant Insurance Company Pacific Indemnity Company Federal Insurance Company

Plaintiffs in Burnett, et al. v. Al Baraka Investment & Development Corp., No. 03-CV-9849 (GBD) (FM), and Appellants in No. 12-1476-cv: Thomas Burnett, in his own right as the Father of Thomas E. Burnett, Jr. deceased Beverly Burnett, in her own right as the Mother of Thomas E. Burnett, Jr., deceased Deena Burnett, in her own right and as Represen- tative of the Estate of Thomas E. Burnett, Jr., deceased Mary Margaret Jurgens, in her own right as the Sister of Thomas E. Burnett, Jr., deceased Martha Burnett O’Brien, in her own right as the Sister of Thomas E. Burnett, Jr., deceased William Doyle, Sr., in his own right as the Father of Joseph M. Doyle, deceased Camille Doyle, in her own right as the Mother of Joseph M. Doyle, deceased William Doyle, Jr., in his own right as the Brother of Joseph M. Doyle, deceased Doreen Lutter, in her own right as the Sister of Joseph M Doyle, deceased

Stephen Alderman, in his own right and as Co-Representative of the Estate of Peter Craig Alderman, deceased Elizabeth Alderman, in her own right and as Co-Representative of the Estate of Peter Craig Alderman, deceased Jane Alderman, in her own right as the Sister of Peter Craig Alderman, deceased Yvonne V. Abdool, in her own right as an injured party Alfred Acquaviva, in his own right as the Father of Paul Andrew Acquaviva Josephine Acquaviva, in her own right as the Mother of Paul Andrew Acquaviva, deceased Kara Hadfield, in her own right as the Sister of Paul Andrew Acquaviva, deceased Jessica Murrow-Adams, in her own right and as Representative of the Estate of Stephen George Adams, deceased Stephen Jezycki, Jr., in his own right as the Father of Margaret Alario, deceased James Alario, in his own right and behalf of the minor Children of Margaret Alario, deceased Catherine Jezycki, in her own right as the Mother of Margaret Alario, deceased Karium Ali, in his own right as an injured party Jennifer D’Auria, in her own right and as Co-Representative of the Estate of Joseph R. Allen, deceased Michael J. Allen, in his own right and as Co-Representative of the Estate of Jospeh R. Allen, deceased

Jocelyne Ambroise, in her own right as an injured party Philipson Azenabor, in his own right as an injured party John P. Baeszler, in his own right as Representative of the Estate of Jane Ellen Baeszler, deceased Mary Barbieri, in her own right as an injured party Armando Bardales, in his own right as an injured party Kevin W. Barry, in his own right as the Son of Diane Barry, deceased Gila Barzvi, in her own right and as Representative of the Estate of Guy Barzvi, deceased John Benedetto, on behalf of the Minor Children of Denise Lenore Benedetto, deceased Rina Rabinowitz, in her own right as the Sister of Denise Lenore Benedetto, deceased Maria Giordano, in her own right as the Mother of Denise Lenore Benedetto, deceased Michael Girdano, in his own right as the Brother of Denise Lenore Benedetto, deceased Ondina Bennett, in her own right and as Represen- tative of the Estate of Bryan Craig Bennett, deceased Frances Berdan, in her own right as an injured party Prakash Bhatt Miles Bilcher, in his own right as the Father of Brian Bilcher, deceased Irene Bilcher, in her own right as the Mother of Brian Bilcher, deceased Boris Bililovsky, in his own right and on behalf of the minor child of Yelena “Helen” Bililovsky, deceased

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Emma Tisnovskiy, in her own right as the Mother of Yelena “Helen” Bililovsky, deceased Leonid Tisnovskiy, in his own right as the Father of Yelena “Helen” Bililocky, deceased Rostyslav Tisnovskiy, in his own right as the Brother of Yelena “Helen” Bililovsky, deceased Basmattie Bishundat, in her own right and as Co-Representative of the Estate of Kris Romeo Bishundat, deceased Bhola P. Bishundat, in his own right and as Co-Representative of the Estate of Kris Romeo Bishundat, deceased Krystyna Boryczewski, in her own right and as Representative of Estate of Martin Boryczewksi, deceased Michele Boryczewski, in her own right as the Sister of Martin Boryczewski, deceased Michael Boryczewski, in his own right as the Father of Martin Boryczewski, deceased Julia Boryczewski, in her own right as the sister of Martin Boryczewski, deceased Brian Barry, in his own right as the Son of Diane Barry, deceased Kevin Barry, in his own right as the Son of Diane Barry, deceased Edmund Barry, in his own right as the Husband of Diane Barry, deceased Daryl Joseph Meehan, in his own right as the Brother of Colleen Ann Barkow, deceased Joann Meehan, in her own right as the Mother of Colleen Ann Barkow, deceased Thomas J. Meehan, III, in his own right as the Father of Colleen Ann Barkow, deceased

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Carol Barbaro, in her own right as the Mother of Paul Barbaro, deceased Nicholas Barbaro, in his own right as the Father of Paul Barbaro, deceased Kim Barbaro, in her own right and as the Represen- tative of the Estate of Paul Barbaro, deceased Anna M. Granville, in her own right as the Sister of Walter Baran, deceased Benjamin Arroyo, in his own right as an injured party Cynthia Arnold, in her own right as an injured party Lorraine Arias Beliveau, in her own right as the Sister of Adam Arias, deceased Lauren Arias Lucchini Andrew Arias, in his own right as the Brother of Adam Arias Donald Arias, in his own right as the Brother of Adam Arias, deceased Thomas Arias, in his own right as the Brother of Adam Arias, deceased Leonor Alvarez, in her own right as an injured party Judith M. Aiken, in her own right as the Sister of Richard Allen Lynn Allen, in her own right as Sister of Richard Allen, deceased Luke C. Allen, in his own right as the Brother of Richard Allen Madelyn Allen, in her own right as the Mother of Richard Allen, deceased Richard D. Allen Michael Jezycki, in his own right as the Brother of Margaret Alario, deceased

Jean Adams, in her own right as the Mother of Donald L. Adams, deceased Maureen Barry, in her own right as the daughter of Diane Barry, deceased Suzanne J. Berger, in her own right, on behalf of the Minor Children, and as the Representative of the Estate of James P. Berger, deceased Robert J. Bernstein, in his own right and as the Rep- resentative of the Estate of William M. Bernstein, deceased Murray Bernstein, in his own right as the Father of William M. Bernstein, deceased Norma Bernstein, in her own right as the Mother of William M. Bernstein, deceased David M. Bernstein, in his own right as the Brother of William M. Bernstein, deceased Joanne F. Betterly, in her own right, on behalf of the Minor Children, and as the Representative of the Estate of Timothy Betterly, deceased Lillian Bini, in her own right as the Mother of Carl Bini, deceased Rosemarie Corvino, in her own right as the Sister of Carl Bini, deceased John Bonomo, in his own right and as the Represen- tative of the Estate of Ynonne Bonomo, deceased Sonia Bonomo, in her own right as the Mother of Yvonne Bonomo, deceased George Bonomo, in his own right as the Brother of Yvonne Bonomo, deceased Sharon Booker, in her own right, on behalf of the Minor Children, and as the Representative of the Estate of Sean Booker, deceased

Rose Booker, in her own right as the Mother of Sean Booker, deceased Desiree A. Gerasimovich, in her own right as the Sister of Pamela J. Boyce, deceased Susan Brady, as the Representative of the Estate of Gavin Cushny, deceased Kathleen M Buckley, in her own right as the Mother, on behalf of the Minor Children, and as the Representative of the Estate of Dennis Buckley, deceased John C. Buckley, in his own right as the Father of Dennis Buckley, deceased Jane M. Smithwick, in her own right as the Sister of Dennis Buckley, deceased Javier Burgos, in his own right as an injured party

Plaintiffs in Estate of John P. O’Neill, Sr., et al. v. Kingdom of Saudi Arabia, et al., No. 04-CV-1922 (GBD) (FM), and Appellants in No. 12-1350-cv: Estate of John P. O’Neill, Sr., on behalf of John P. O’Neill, Sr., deceased, and on behalf of decedent’s heirs-at-law J. P. O’Neill, Jr., C. I. O’Neill, Police Officer C. O’Neill, and D. A. O’Neill, on behalf of themselves and all others similarly situated

Plaintiffs in Continental Casualty Co., et al. v. Al Qaeda, et al., No. 04-CV-5970 (GBD) (FM), and Appellants in No. 12-1519-cv: Continental Casualty Company Transcontinental Insurance Company Transportation Insurance Company Valley Forge Insurance Company National Fire Insurance Company of Hartford American Casualty Company of Reading, Pennsylvania

Plaintiffs in Cantor Fitzgerald & Co., et al. v. Akida Private, Ltd., et al., No. 04-CV-7065 (GBD) (FM), and Appellants in No. 12-1441-cv: Cantor Fitzgerald Associates, L.P. Cantor Fitzgerald Brokerage, L.P. Cantor Fitzgerald Europe Cantor Fitzgerald International Cantor Fitzgerald Partners Cantor Fitzgerald Securities Cantor Fitzgerald, L.P. Cantor Index Limited C02e.com, LLC eSpeed Government Securities, Inc. Espeed, Inc. eSpeed Securities, Inc. TradeSpark, L.P. WTC Retail LLC Port Authority Trans-Hudson Corporation Port Authority of New York and New Jersey Cantor Fitzgerald & Co.

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Plaintiffs in Pacific Employers Insurance, et al. v. Kingdom of Saudi Arabia, et al., No. 04-CV-7216 (GBD) (FM), and Appellants in No. 12-1318-cv: Pacific Employers Insurance Company Indemnity Insurance Company of North America Ace American Insurance Company

Plaintiffs in Euro Brokers Inc., et al. v. Al Baraka, et al., No. 04-CV-7279 (GBD) (FM), and Appellants in 12-1477-cv: Euro Brokers Inc., a Delaware corporation Maxcor Financial Group Inc., a Delaware corporation Maxcor Financial Asset Management Inc. Tradesoft Technologies, Inc., a Delaware corporation Maxcor Information Inc. Euro Brokers Ltd. Euro Brokers Financial Services Limited Euro Brokers Mexico, S.A. DE C.V., a corporation organized under the laws of Mexico Euro Brokers (Switzerland) S.A.

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TABLE OF CONTENTS Page QUESTION PRESENTED ...... i PARTIES TO THE PROCEEDINGS ...... ii TABLE OF AUTHORITIES ...... xviii INTRODUCTION ...... 1 OPINIONS BELOW ...... 6 JURISDICTION ...... 6 STATUTORY PROVISIONS INVOLVED ...... 6 STATEMENT OF THE CASE ...... 6 A. In 2006, the District Court Entered a Final Judgment Dismissing Cases Against Saudi Arabia and the SHC ...... 6 1. In January 2005, the district court granted Saudi Arabia’s motion to dismiss ...... 6 2. In September 2005, the district court granted the SHC’s motion to dismiss ...... 9 3. The entry of final judgments ...... 11 B. The Second Court Affirmed the District Court’s Judgment in 2008, and This Court Denied Review in 2009 ...... 12 C. In 2012, the District Court Denied Plain- tiffs’ Rule 60(b) Motion, but the Second Circuit Reversed ...... 14 REASONS FOR GRANTING THE PETITION ...... 19 THE COURT OF APPEALS’ DECISION CONFLICTS WITH THIS COURT’S CASES INTERPRETING RULE 60(b) AND VIO- LATES A CORE PRINCIPLE OF SOVER- EIGN IMMUNITY ...... 19

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A. A Change in Circuit Precedent Is No Basis To Disturb the Finality of a Judg- ment ...... 19 B. There Were No “Inconsistent Results” To Justify an Exception to Finality ...... 21 C. The Court of Appeals Violated the Prin- ciple That Foreign Sovereign Immunity Should Be Resolved at the Outset of Liti- gation ...... 27 D. The Court of Appeals Was Required To Consider Alternative Grounds for Affir- mance ...... 30 CONCLUSION ...... 33 APPENDIX: Opinion of the United States Court of Appeals for the Second Circuit, In re Terrorist Attacks on September 11, 2001, Nos. 12-1318-cv(L) et al. (Dec. 19, 2013) ...... 1a Order of the United States District Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (GBD)(FM) (Mar. 16, 2012) ...... 13a Hearing in the United States District Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (GBD) (Mar. 15, 2012) (excerpt) ...... 15a Opinion of the United States Court of Appeals for the Second Circuit, In re Terrorist Attacks on September 11, 2001, No. 06-0319-cv(L) (Aug. 14, 2008) ...... 22a

Rule 54(b) Judgment of the United States District Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (GBD) (July 14, 2011) ...... 69a Order of the United States District Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (GBD) (July 13, 2011) ...... 74a Stipulation with Regard to Rulings on Motions To Dismiss of Defendants HRH Prince Naif bin Abdulaziz Al-Saud, HRH Prince Salman bin Abdulaziz Al-Saud, and the Saudi High Commission in Related Cases of the United States District Court for the Southern District of New York, In re Terrorist Attacks on Sep- tember 11, 2001, No. 03 MDL 1570 (RCC) (Feb. 8, 2006) ...... 80a Stipulation with Regard to Rulings on Motion To Dismiss of Defendant Saudi High Commis- sion in Related Cases of the United States District Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (RCC) (Feb. 8, 2006) ...... 85a Order of the United States District Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (RCC) (Jan. 18, 2006) ...... 88a Judgment of the United States District Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (RCC) (Jan. 10, 2006) ...... 89a

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Order of the United States District Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (RCC) (Dec. 16, 2005) ...... 91a Stipulation with Regard to Rulings on Motions To Dismiss of Defendants HRH Prince Naif bin Abdulaziz Al-Saud, HRH Prince Salman bin Abdulaziz Al-Saud, and the Saudi High Commission in Related Cases of the United States District Court for the Southern District of New York, In re Terrorist Attacks on Sep- tember 11, 2001, No. 03 MDL 1570 (RCC) (Nov. 28, 2005) ...... 95a Opinion and Order of the United States Dis- trict Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, Nos. 03 MDL 1570 (RCC) et al. (Sept. 21, 2005) ...... 99a Stipulation with Regard to Rulings on Motion To Dismiss of Defendant the Saudi High Com- mission in Related Cases of the United States District Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (RCC) (May 19, 2005) .... 162a Order of Dismissal of the United States District Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, No. 03 MDL 1570 (RCC) (May 5, 2005) ...... 165a Opinion and Order of the United States Dis- trict Court for the Southern District of New York, In re Terrorist Attacks on September 11, 2001, Nos. 03 MDL 1570 (RCC) et al. (Jan. 18, 2005) ...... 171a

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Statutory Provisions Involved ...... 294a Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602 et seq.: 28 U.S.C. § 1604 ...... 294a 28 U.S.C. § 1605 ...... 294a 28 U.S.C. § 1605A ...... 300a

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TABLE OF AUTHORITIES Page CASES Ackermann v. United States, 340 U.S. 193 (1950) ...... 20 Agostini v. Felton, 521 U.S. 203 (1997) ..... 5, 20, 21, 26 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) ...... 13 Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517 (D.C. Cir. 1984) ...... 29 Biggins v. Hazen Paper Co., 111 F.3d 205 (1st Cir. 1997) ...... 21 Browder v. Director, Dep’t of Corrections, 434 U.S. 257 (1978) ...... 21 Design Classics, Inc., In re, 788 F.2d 1384 (8th Cir. 1986) ...... 30 Doe v. Bin Laden: 580 F. Supp. 2d 93 (D.D.C. 2008), aff’d, 663 F.3d 64 (2d Cir. 2011) ...... 23 663 F.3d 64 (2d Cir. 2011) ...... 3, 4, 14, 16, 18, 22, 23, 24, 28, 29, 32 Dole Food Co. v. Patrickson, 538 U.S. 468 (2003) ...... 28 Economy Fin. Corp. v. United States, 431 U.S. 926 (1977) ...... 26 Federal Ins. Co. v. Kingdom of Saudi Arabia: 555 U.S. 1168 (2009) ...... 12 557 U.S. 935 (2009) ...... 3, 13 Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir. 1990) ...... 28

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Gondeck v. Pan American World Airways, Inc., 382 U.S. 25 (1965) ...... 5, 18, 25, 26 Gonzalez v. Crosby, 545 U.S. 524 (2005) ...... 4, 19, 20, 21, 23, 26, 31 Mitchell v. Forsyth, 472 U.S. 511 (1985) ...... 27 O’Bryan v. Holy See, 556 F.3d 361 (6th Cir. 2009) ...... 29 Pearson v. Callahan, 555 U.S. 223 (2009) ...... 27, 28 Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) ...... 27 Rush-Presbyterian-St. Luke’s Med. Ctr. v. Hellenic Republic, 877 F.2d 574 (7th Cir. 1989) ...... 28 Segni v. Commercial Office of Spain, 816 F.2d 344 (7th Cir. 1987) ...... 28 Siegert v. Gilley, 500 U.S. 226 (1991) ...... 27 Terrorist Attacks on September 11, 2001, In re: 538 F.3d 71 (2d Cir. 2008) ...... 3, 12 714 F.3d 109 (2d Cir. 2013) ...... 16, 17, 18, 29, 31 Nos. 11-3294 et al. (2d Cir. June 10, 2013) ...... 17 Thigpen v. Roberts, 468 U.S. 27 (1984) ...... 31 United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (1984) ...... 8 Weed v. Bilbrey, 400 U.S. 982 (1970) ...... 26

STATUTES AND RULES Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602 et seq...... passim 28 U.S.C. § 1603(b) ...... 10 28 U.S.C. § 1604 ...... 2, 28 28 U.S.C. §1605(a)(5) ...... 7, 8 28 U.S.C. § 1605(a)(5)(A) ...... 2 28 U.S.C. § 1605(a)(7) (2000 & Supp. I 2001) ...... 8 28 U.S.C. § 1605A ...... 3, 7, 8 28 U.S.C. § 1254(1) ...... 6 Fed. R. Civ. P.: Rule 54(b) ...... 11 Rule 60(b) ...... 4, 5, 11, 14, 15, 16, 17, 18, 19, 20, 23, 24, 29, 30, 31, 32 Rule 60(b)(1)-(5) ...... 19 Rule 60(b)(2) ...... 15 Rule 60(b)(6) ...... 19 Rule 60(c)(1) ...... 15

OTHER MATERIALS Br. for the United States as Amicus Curiae, Federal Ins. Co. v. Kingdom of Saudi Arabia, 557 U.S. 935 (2009) (No. 08-640) (U.S. filed May 29, 2009), 2009 WL 1539068 ...... 3, 13 Compl., Doe v. Bin Laden, Civil Action No. 01-2516 (RWR) (D.D.C. filed Jan. 4, 2002) ...... 23

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Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) ...... 26 The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (July 2004) ..... 2, 8

Petitioners The Kingdom of Saudi Arabia and the Saudi High Commission for Relief of Bosnia & Her- zegovina respectfully petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit. INTRODUCTION The Second Circuit held that the district court in this case was required as a matter of law to reopen an eight-year-old final judgment because of a change in circuit precedent. Yet the court of appeals did not, and could not, determine that the change in circuit precedent would have made any difference to the outcome of this case. The court of appeals’ ruling subjects a foreign sovereign and important ally of the United States to renewed litigation based on spurious allegations of complicity in the worst terrorist attack ever perpe- trated on United States soil. Its ruling conflicts with decisions of this Court, undermines the finality of judgments in complex litigation, and contradicts the important principle that sovereign immunity should be resolved as early as possible so as not to burden a sovereign defendant with unnecessary litigation. Following an exhaustive and authoritative investi- gation, the National Commission on Terrorist Attacks Upon the United States (the “9/11 Commission”) concluded that the Kingdom of Saudi Arabia had no role in the attacks of September 11, 2001. The 9/11 Commission found that Saudi Arabia did not provide financial or material assistance to the September 11 terrorists or their al Qaeda organization: “Saudi Arabia has long been considered the primary source of al Qaeda funding, but we have found no evidence that the Saudi government as an institution or senior Saudi officials individually funded the organization.”

The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States 171 (July 2004) (the “9/11 Report”). Respondents, Plaintiffs in this case, have nevertheless sought damages for the September 11 attacks from the Kingdom of Saudi Arabia and its agency the Saudi High Commission for Relief of Bosnia & Herzegovina (“the SHC”), among hundreds of other defendants. Plaintiffs sought to link Saudi Arabia and the SHC to the hijackers responsible for the attacks by alleging that these two Defendants provided financial and other support to terrorist groups and – in a blanket, conclusory allegation repeated verbatim with respect to dozens of other defendants – that “[t]he September 11th Attack was a direct, intended and foreseeable product of [Defendants’] participa- tion in al Qaida’s jihadist campaign.”1 In 2005, the district court granted Saudi Arabia’s and the SHC’s motions to dismiss, concluding that foreign sovereign immunity under the Foreign Sov- ereign Immunities Act of 1976 (“FSIA”) barred Plain- tiffs’ claims. See 28 U.S.C. § 1604. Plaintiffs had attempted to invoke the FSIA’s exemption to immunity for non-commercial torts. The court’s ruling that Plaintiffs could not do so rested solely on the ground that their claims were “based upon the exercise or performance or the failure to exercise or perform a discretionary function.” Id. § 1605(a)(5)(A). In 2008, the Second Circuit affirmed without ad- dressing the district court’s reliance on discretionary- function immunity. Instead, it relied on the alterna-

1 First Am. Compl. ¶¶ 189, 425, Federal Ins. Co. v. al Qaida, No. 03-CV-6978 (filed Sept. 30, 2005) (“Fed. Ins. Compl.”) (C.A. App. 1237, 1284).

3 tive ground that Plaintiffs could not invoke the noncommercial torts exception for “claims . . . expressly predicated on a state-sponsored terrorist act.” In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 75 (2d Cir. 2008) (App. 23a). The court held that such claims could be brought solely under the exception for state-sponsored terrorism, 28 U.S.C. § 1605A. It was (and is) undisputed that Saudi Arabia has not been designated as a state sponsor of terrorism, so that neither the Kingdom nor its instrumentalities can be sued under § 1605A. See 538 F.3d at 89 (App. 52a). Plaintiffs then sought certiorari. This Court invited the Solicitor General to provide the views of the United States. The Solicitor General’s brief stated that certiorari should be denied because (among other things) “[t]he lower courts correctly concluded that Saudi Arabia and its officials are immune from suit for governmental acts outside the United States.”2 Although the United States disagreed with the Second Circuit’s interpretation of § 1605A, it explained that: “To satisfy the [FSIA’s] domestic tort exception, petitioners must allege that Saudi Arabia, its officials, or employees, committed tortious acts within the United States. Petitioners’ complaints do not satisfy that requirement.” U.S. Amicus Br. 12. This Court denied review. Federal Ins. Co. v. King- dom of Saudi Arabia, 557 U.S. 935 (2009). Two and a half years later, the Second Circuit decided Doe v. Bin Laden, 663 F.3d 64 (2d Cir. 2011) (per curiam), which revisited the narrow legal issue addressed in its 2008 decision in this case – i.e., whether the FSIA’s torts exception to immunity can

2 Br. for the United States as Amicus Curiae at 3, No. 08-640 (U.S. filed May 29, 2009), 2009 WL 1539068 (“U.S. Amicus Br.”).

4 ever provide a basis for jurisdiction over a claim involving allegations of terrorism. See id. at 66. Partially overruling its earlier decision in a footnote, the court held that “the terrorism exception, rather than limiting the jurisdiction conferred by the noncommercial tort exception, provides an additional basis for jurisdiction.” Id. at 70 & n.10. The Doe court emphasized, however, that it was not deciding any other issue regarding the application of the FSIA even on the facts of that case, stating that it “ma[d]e no judgment as to whether the allegations in the complaint are sufficient to state a claim or even to provide jurisdiction.” Id. at 70-71. Following Doe, Plaintiffs asked the district court to reopen its final judgment in favor of Saudi Arabia and the SHC. See Fed. R. Civ. P. 60(b). Defendants opposed that motion, explaining that a change in decisional law issued after a final judgment is not a basis for reopening that judgment. After full briefing and oral argument, the district court denied Plain- tiffs’ motion. App. 13a-14a, 15a-21a. But the Second Circuit reversed, holding that the district court was required to reopen its judgment because “[o]ur incorrect decision in [the 2008 appeal] caused a disparity between [these] plaintiffs and the Bin Laden plaintiff where none should ever have existed.” App. 11a. That holding warrants further review because it violates important principles recognized in this Court’s decisions. First, this Court’s cases establish that a change in governing precedent issued after a final judgment does not, without more, require (or even permit) a district court to reopen that judgment. See Gonzalez v. Crosby, 545 U.S. 524, 536 (2005) (“It is hardly extraordinary that subsequently, after petitioner’s case was no longer pending, this Court

5 arrived at a different interpretation [of a federal statute].”); Agostini v. Felton, 521 U.S. 203, 239 (1997) (“Intervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6)”). The Second Circuit based its conclusion that “the interest in treating victims of the same tort consistently” requires Rule 60(b) relief on Gondeck v. Pan American World Airways, Inc., 382 U.S. 25 (1965) (per curiam). But Gondeck involved this Court’s exercise of its own discretion under its own rules to accept an untimely rehearing petition. That case gave the court of appeals no authority to hold that the district court was required to reopen a long-final judgment based on an intervening change in decisional law. Second, the court of appeals did not (and could not) determine that the intervening change in law here undermined either the district court’s original discretionary-function ruling in 2005 or the alternative ground urged by the United States before this Court in this very case, and adopted by another panel of the Second Circuit in a related case against other Saudi agencies. That is, the Second Circuit held that its departure from its own precedent required the district court to reopen its judgment as a matter of law regardless of whether that ruling would actually have changed that judgment. That holding is unprecedented. As applied to Saudi Arabia and the SHC, moreover, the court of appeals’ ruling violates the principle that sovereign immunity should be resolved as early as possible in the case so as not to burden a sovereign defendant with unnecessary litigation.

OPINIONS BELOW The opinion of the court of appeals (App. 1a-12a) is reported at 741 F.3d 353. The order of the district court (App. 13a-14a) is not reported. JURISDICTION The court of appeals entered its judgment on December 19, 2013. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED Relevant provisions of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602 et seq., are reproduced at App. 294a-305a. STATEMENT OF THE CASE A. In 2006, the District Court Entered a Final Judgment Dismissing Cases Against Saudi Arabia and the SHC 1. In January 2005, the district court granted Saudi Arabia’s motion to dismiss a. Plaintiffs are insurance companies, businesses, and family members who suffered damages from the terrorist attacks of September 11, 2001. When this case was first litigated, Plaintiffs alleged that the Saudi government, acting through senior officials and various entities supposedly acting on Saudi Arabia’s behalf, provided financial and material assistance to al Qaeda and thereby assisted that organization’s “growth and development into a sophisticated global terrorist network” capable of perpetrating the September 11 attacks. Fed. Ins. Compl. ¶ 398 (C.A. App. 1278). Plaintiffs did not allege any direct involvement by Saudi Arabia in the September 11 attacks, but rather asserted (without specific factual support) that those attacks were a “direct, intended and foreseeable product” of Saudi Arabia’s purported

7 support of al Qaeda. Id. ¶ 425 (C.A. App. 1284). Plaintiffs repeated identical boilerplate allegations accusing various businesses, banks, and humanitarian relief organizations of intending and foreseeing the September 11 attacks. In August 2004, Saudi Arabia filed a motion to dismiss asserting sovereign immunity under the FSIA. Saudi Arabia argued, among other things, that the FSIA’s exception for tort claims, 28 U.S.C. § 1605(a)(5), did not provide jurisdiction for three reasons: (1) claims involving alleged support for terrorism must be maintained, if at all, under the FSIA’s separate terrorism exception, 28 U.S.C. § 1605A; (2) any decisions by Saudi Arabia about distributing its financial and material resources involved discretionary functions and were exempted from the torts exception; and (3) for the torts exception to apply, the “entire tort” – including the alleged tortious act by the defendant – must have occurred in the United States.3 b. In January 2005, the district court4 granted Saudi Arabia’s motion to dismiss. App. 171a-293a. Because there was “no dispute that the Kingdom of Saudi Arabia is a foreign state within the meaning of the FSIA,” App. 219a (citing Fed. Ins. Compl. ¶ 63 (C.A. App. 1196)), the court addressed the relevant FSIA exceptions to determine whether it had jurisdiction. The court first addressed the FSIA’s state-

3 See Mem. of Law in Supp. of Mot. To Dismiss of the King- dom of Saudi Arabia at 9-14 (filed Aug. 4, 2004) (MDL ECF No. 374-2). 4 In 2005 and 2006, Judge Casey presided over this case in the district court. After Judge Casey’s death in 2007, the case was reassigned to Judge Daniels. App. 3a n.1.

8 sponsor-of-terrorism exception, 28 U.S.C. § 1605A.5 This exception did not apply because Saudi Arabia “has not been designated a state sponsor of terrorism.” App. 201a. The court also addressed the FSIA’s torts exception, 28 U.S.C. § 1605(a)(5). It rejected Saudi Arabia’s contention that the torts exception could not apply to claims based on alleged support for terrorism. App. 206a-207a. Even so, the district court held that Plaintiffs’ claims did not satisfy the torts exception to FSIA immunity. The court explained that Plaintiffs’ allegations with respect to Saudi Arabia “ar[o]se predominantly” from claims that the Saudi government “aided and abetted the terrorists” by supporting charities purportedly “under the Kingdom’s control.” App. 219a-220a (internal quotations omitted). The court concluded that Plaintiffs’ concrete allegations concerned only Saudi Arabia’s alleged “treatment of and decisions to support Islamic charities.” App. 221a. Those alleged decisions were “purely planning level ‘decisions grounded in social, economic, and political policy’” and were therefore discretionary functions outside the scope of the torts exception. Id. (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)).6 Accordingly, the court found that Plaintiffs could not meet the requirements of the

5 At the time, the state-sponsor-of-terrorism exception was codified at 28 U.S.C. § 1605(a)(7) (2000 & Supp. I 2001). Former § 1605(a)(7) has since been repealed and replaced with § 1605A. 6 The court also recognized that “the presidentially-appointed September 11 commission found no evidence of the Kingdom’s funding or support for the September 11 terrorists.” App. 221a (citing 9/11 Report 171).

9 torts exception (or any other FSIA exception). App. 221a-222a. c. Following the district court’s decision granting Saudi Arabia’s motion to dismiss, the parties stipulated that the court’s ruling would apply to all actions naming Saudi Arabia as a defendant, on the ground that “the allegations and evidence” presented in the cases still pending did “not materially differ” from those presented in the cases already dismissed. App. 169a. On May 5, 2005, the district court adopted that stipulation as its order. App. 165a-170a. 2. In September 2005, the district court granted the SHC’s motion to dismiss a. In June 2004, the SHC moved to dismiss complaints against it in several cases. App. 102a n.1. The complaints in those cases alleged that the SHC provided funding and logistical support for al Qaeda. App. 102a-104a (describing allegations). Like Saudi Arabia, the SHC argued that the FSIA barred the claims against it because Plaintiffs could not satisfy the terrorism exception to FSIA immunity and because, even if the torts exception could apply, Plaintiffs had not overcome the SHC’s immunity under the discretionary-function exclusion and had not satisfied the entire-tort rule.7 In support of its motion, the SHC submitted, among other evidence, the declaration of Saud bin Mohammad Al-Roshood, the Director of the Execu- tive Office of the SHC.8 Mr. Al-Roshood provided uncontradicted testimony that the SHC is a legitimate

7 See Mem. of Law in Supp. of Def. SHC’s Mot. To Dismiss at 14-16, 20-22 (filed June 25, 2004) (MDL ECF No. 262-2). 8 See Decl. of Max Huffman in Supp. of Def. SHC’s Mot. To Dismiss, Ex. A (filed June 25, 2004) (MDL ECF No. 262-3).

10 humanitarian organization and that, contrary to Plaintiffs’ wholly unsupported allegation that SHC funds were diverted to al Qaeda, Bosnian authorities audited the disbursements of funds by the SHC in 1998, 1999, 2000, and 2001, and found that those funds were disbursed for appropriate humanitarian purposes.9 b. In September 2005, the district court granted the SHC’s motion to dismiss. App. 99a-161a. The court first determined that the SHC is an “organ, agency, or instrumentality” of Saudi Arabia and is therefore entitled to assert sovereign immunity under the FSIA. App. 112a-114a; 28 U.S.C. § 1603(b). Turning to the FSIA’s exceptions, the district court concluded that Plaintiffs’ allegations were insufficient to overcome discretionary-function immunity. App. 117a-118a. Relying on “undisputed evidence” submitted by the SHC, the court held that the SHC’s decisions regarding the distribution of humanitarian funds were discretionary and that the SHC was guided by Saudi Arabia’s official governmental poli- cies toward Bosnia-Herzegovina. App. 113a. The court accordingly held that “[the] SHC is immune from suit in this litigation.” App. 118a. c. The SHC and the plaintiffs in three other cases stipulated that they would be bound by the decision of the district court and any appeal of that decision. On February 8, 2006, the district court adopted those stipulations as its orders. App. 80a-87a.

9 See id.

3. The entry of final judgments On May 20, 2005, Plaintiffs moved for entry of a partial final judgment dismissing the cases against Saudi Arabia. To obtain that relief, Plaintiffs argued to the court that “considerations of fairness to the dismissed part[y]” – Saudi Arabia – “weigh[ed] heavily in favor of early appeal and swift, final dismissal from protracted litigation.”10 They explained that entering a final judgment was appropriate to enable immediate appellate review because, “should [the district court’s] order of dismissal ultimately be sustained, [Saudi Arabia is] entitled to the finality that such relief promises as soon as possible, not years in the future, and without the substantial costs and uncertainty of being forced to monitor this litigation until an appeal finally ripens.”11 In December 2005, the district court entered an order directing the Clerk of Court to enter a final judgment in favor of Saudi Arabia and the SHC, among others, pursuant to Federal Rule of Civil Procedure 54(b). App. 91a-94a. That order applied to all pending cases against Saudi Arabia and to three cases against the SHC. App. 92a-93a. The clerk entered judgment on January 10, 2006. App. 89a-90a. Accordingly, by no later than January 10, 2006 – approximately six years before the filing of Plaintiffs’ Rule 60(b) motion, and eight years before the court of appeals’ decision – all of Plaintiffs’ cases against Saudi Arabia, and three of their cases against the SHC, were terminated by a judgment of the district

10 Pls.’ Mem. of Law in Supp. of Mot. for Entry of Final Judgments at 11 (filed May 20, 2005) (MDL ECF No. 919-2). 11 Id.

12 court. By no later than February 8, 2006, the remain- ing cases against the SHC were subject to binding stipulations and awaited only the ministerial entry of final judgment.12 B. The Second Court Affirmed the District Court’s Judgment in 2008, and This Court Denied Review in 2009 Plaintiffs appealed the district court’s judgment dismissing the cases against Saudi Arabia and the SHC. In August 2008, the Second Circuit affirmed on the ground that the FSIA’s torts exception is categorically inapplicable to claims based on alleged involvement in terrorist activities. Terrorist Attacks, 538 F.3d at 86-90 (App. 47a-55a). The court also noted that Defendants had raised “other challenges to the application of the Torts Exception” – including that, “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,” and that “the ‘discretionary function’ exclusion to the Torts Exception reinstates sovereign immunity.” Id. at 90 n.15 (App. 55a). The court found it “unnecessary to reach these additional arguments.” Id. Plaintiffs filed a certiorari petition, and this Court asked for the views of the United States. Federal Ins. Co. v. Kingdom of Saudi Arabia, 555 U.S. 1168 (2009). In a brief submitted on behalf of the State Department as well as the Justice Department, the United States recommended that the Court deny the petition. Although it disagreed with the Second Cir- cuit’s holding that the torts exception does not apply

12 Judgment ultimately was entered on July 14, 2011, without further substantive proceedings. App. 69a-73a.

13 to acts of terrorism, the United States told this Court that the Second Circuit properly upheld the dismissal of Saudi Arabia and the SHC under the FSIA: The lower courts correctly concluded that Saudi Arabia and its officials are immune from suit for governmental acts outside the United States. Although the United States disagrees in certain respects with the analysis of the court of appeals, further review by this Court to determine the best legal basis for that immunity is unwarranted. U.S. Amicus Br. 3-4. In particular, the United States reasoned that Saudi Arabia and the SHC are immune from suit under the entire-tort rule. Relying on Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989), the United States explained that the FSIA’s torts exception “‘covers only torts occurring within the territorial jurisdiction of the United States.’” U.S. Amicus Br. 11 (quoting Amerada Hess, 488 U.S. at 441). “The tort exception’s territorial limitation protects against conflict that would arise from asserting jurisdiction over a foreign government’s actions taken in its own terri- tory, and also serves to deter foreign courts from exercising jurisdiction over the United States for actions taken in the United States.” Id. at 15. Applying the entire-tort rule to this case, the United States concluded that Plaintiffs’ complaints do not “allege that Saudi Arabia, its officials, or employees, committed tortious acts within the United States” and therefore “do not satisfy” the entire-tort rule. Id. at 12. This Court denied review. 557 U.S. 935 (2009).

C. In 2012, the District Court Denied Plaintiffs’ Rule 60(b) Motion, but the Second Circuit Reversed 1. In November 2011, the Second Circuit decided Doe v. Bin Laden, which involved allegations that Afghanistan had assisted al Qaeda in planning and executing the September 11 attacks.13 Partially overruling its 2008 decision in this case, the Court held that “the terrorism exception, rather than limiting the jurisdiction conferred by the noncommercial tort exception, provides an additional basis for jurisdiction.” 663 F.3d at 70 & n.10. It emphasized its desire to “be clear” that it “ma[d]e no judgment as to whether the allegations in the complaint are sufficient to state a claim or even to provide jurisdiction” under the FSIA. Id. at 70-71. 2. Following Doe, Plaintiffs moved in the district court for relief from that court’s final judgment in favor of Saudi Arabia and the SHC. See Fed. R. Civ. P. 60(b). Defendants opposed that motion, explaining that a change in decisional law issued years after a final judgment is not a basis for reopening that judgment. Defendants also explained that reopening the judgments in light of Doe was particularly unjustified because that decision cast no doubt on the correctness of the district court’s discretionary- function rulings and because the entire-tort rule also supported the district court’s original determination. Plaintiffs’ Rule 60(b) motion and opening memo- randum ignored entirely the discretionary-function

13 Doe was originally filed in the United States District Court for the District of Columbia and was transferred to this multidistrict litigation nearly a year after the Second Circuit affirmed the dismissal of the cases against petitioners in 2008. App. 4a-5a.

15 basis for the district court’s original judgment. On reply, Plaintiffs filed 156 pages of purported “evidence,” including declarations by two former members of the 9/11 Commission, which they argued supported their assertions that Saudi Arabia and the SHC bore responsibility for the September 11 attacks. Plaintiffs did not then contend, and have not since contended, that they meet the standard set forth in Rule 60(b)(2) for seeking relief based on newly discovered evidence or the requirement of Rule 60(c)(1) that any such motion be made “no more than a year after the entry of the judgment.”14 The district court denied Plaintiffs’ motion, for the reasons stated on the record in open court. App. 15a- 21a. The court explained that Plaintiffs had not identified any factor that would “take [these cases] out of the area of any standard case in which the [Second] Circuit may have changed its decision with regard to the basis [for] . . . affirming a determination by the [district] [c]ourt.” App. 18a. The district court also reasoned that reopening the final judgments would be particularly unwarranted here because the change in law on which Plaintiffs relied does not affect the basis for that court’s original decisions dismissing Defendants. App. 18a- 19a. In addition, the court found that “[t]he facts

14 Saudi Arabia and the SHC moved to strike Plaintiffs’ new evidence on the ground that it was improperly presented for the first time on reply and was years untimely under Rule 60(c)(1). See Defs.’ Mem. of Law in Supp. of Mot. To Strike at 1-4 (filed Feb. 28, 2012) (MDL ECF No. 2561). The district court denied the motion to strike, but also stated that “simply to say that it would give the plaintiff some opportunity to now try to determine if there are a different set of facts that they could allege after . . . all of these years” would not be an “appropriate” reason to exercise its discretion under Rule 60(b). App. 18a, 20a.

16 do not indicate that there is the possibility of such inconsistent determinations” that might warrant Rule 60(b) relief, because Doe and these cases involved “different defendants with different sets of allegations regarding their activities.” App. 17a, 19a. 3. In April 2013, while Plaintiffs’ appeal of the district court’s denial of their Rule 60(b) motion was pending, the Second Circuit issued a decision in a related case that addressed the entire-tort issue left open in its 2008 decision. See In re Terrorist Attacks on September 11, 2001, 714 F.3d 109 (2d Cir. 2013). That case involved claims against the Saudi Joint Relief Committee (“SJRC”) and the Saudi Red Cres- cent Society (“SRC”), two sovereign “humanitarian relief organizations established and sponsored by the Kingdom of Saudi Arabia” – organizations that the court described as “similarly-situated” to Saudi Arabia and the SHC. Id. at 111-12. The district court had dismissed the claims against those organizations based on the Second Circuit’s 2008 ruling that the FSIA’s torts exception cannot apply in cases involving alleged support for terrorism. Id. at 112-13. Follow- ing Doe, Plaintiffs argued that the court of appeals should summarily vacate the district court’s judgment and remand for further proceedings, “including a regular course of discovery.” Id. at 113. The Second Circuit, however, affirmed the district court’s dismissal on an alternative ground. It held that, for the FSIA’s torts exception to apply, “the ‘entire tort’ must be committed in the United States.” Id. at 115. Because Plaintiffs asserted that “the inju- ries and damage caused by the September 11, 2001 attacks in the United States were related to, and a result of, the actions taken by the SJRC and the SRC abroad – namely, allegedly contributing financial and

17 other resources to support Osama Bin Laden and al Qaeda,” the court held that the torts exception did not apply. Id. at 116. The court thus accepted the same argument that the United States had made in urging this Court to deny review of the Second Circuit’s 2008 decision in this case. See supra pp. 12-13. Responding to Plaintiffs’ argument that the court of appeals should have allowed the district court to consider the entire-tort issue in the first instance, the Second Circuit explained that “it is well established that we can affirm the dismissal of a complaint on any basis supported by the record.” 714 F.3d at 117. It also recognized that “a central purpose of the FSIA is to enable a foreign government to obtain an early dismissal when the substance of the claim against it does not support jurisdiction” and reasoned that “remanding the matter to the District Court at this juncture of a prolonged litigation would simply delay the inevitable and keep the SJRC and the SRC in this lawsuit longer than appropriate.” Id. (internal quotations omitted). Plaintiffs sought rehearing, which the Second Cir- cuit denied. See Order, Nos. 11-3294 et al. (June 10, 2013). Plaintiffs did not seek review in this Court of the Second Circuit’s adoption of the entire-tort rule. 4. In December 2013, the Second Circuit reversed the district court’s judgment denying Plaintiffs’ Rule 60(b) motion. App. 1a-12a. Although the court acknowledged that “a mere change in decisional law” generally does not permit (let alone require) relief under Rule 60(b), it reasoned that the “general rule . . . should not be followed here” because “[t]he procedural history of this case produced inconsistent results between two sets of plaintiffs suing for damages based on the same incident.” App. 7a. The court

18 of appeals read this Court’s decision in Gondeck v. Pan American World Airways, Inc. to support a principle that “the interest in finality” under Rule 60(b) “is outweighed by the interest in treating victims of the same tort consistently.” App. 8a. Accordingly, the Second Circuit reasoned, because Doe allowed plaintiffs to proceed against Afghanistan on claims arising from the September 11 attacks, the district court had to reopen its judgment to permit further litigation against Saudi Arabia and the SHC. App. 9a. The Second Circuit also suggested that this case was sufficiently extraordinary to require Rule 60(b) relief because, as a result of that court’s 2008 decision affirming the original dismissal on other grounds, it “never reviewed the District Court’s reason for [that dismissal] – that the discretionary function limitation applied.” App. 5a-6a; see App. 7a (observing that “[t]he procedural history of this case . . . allowed the District Court’s application of the discretionary function limitation to go unreviewed”). The Second Circuit refused to consider affirming the judgment based on either the district court’s original discretionary-function ruling (which had not been undermined by any subsequent change in law) or the entire-tort rule (which that court had recently applied to affirm the dismissal of indistinguishable claims against “similarly-situated defendants,” Terrorist Attacks, 714 F.3d at 112). App. 11a-12a. In support of that refusal, the court cited the rule that “[t]he appeal from the denial of a motion to vacate pursuant to Rule 60(b) brings up for review only the validity of that denial, not the merits of the underlying judgment itself.” App. 7a (internal quotations omitted).

REASONS FOR GRANTING THE PETITION THE COURT OF APPEALS’ DECISION CON- FLICTS WITH THIS COURT’S CASES INTER- PRETING RULE 60(b) AND VIOLATES A CORE PRINCIPLE OF SOVEREIGN IMMUNITY Reopening a final judgment is a rare and excep- tional action that a court should take only on the basis of extraordinary circumstances. This Court’s cases make clear that a change in precedent does not ordinarily even justify a court in reopening a judgment. The Second Circuit here found that its decision to overrule its own precedent in another case not only justified new litigation, but required the district court to reopen this case. That decision exhibits a flagrant disregard for the finality of judgments that cannot be squared with Rule 60(b) as this Court has read it. Further, by dragging an important ally of the United States back into court to relitigate decade-old cases that the 9/11 Commission has rejected on their facts and the United States has argued to this Court are legally barred, the decision of the court of appeals also contravenes the policy of respect for foreign sovereigns embodied in the FSIA. A. A Change in Circuit Precedent Is No Basis To Disturb the Finality of a Judgment Rule 60(b) “allows a party to seek relief from a final judgment, and request reopening of [its] case, under a limited set of circumstances including fraud, mis- take, and newly discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Rule 60(b)(6), the provision on which Plaintiffs and the Second Circuit relied, provides for relief based on “any other reason” – that is, one not listed in parts (b)(1) through (b)(5) – “that justifies relief.” Fed. R. Civ. P. 60(b)(6); see Gonzalez, 545 U.S. at 528-29. This Court reaffirmed

20 in Gonzalez that “a movant seeking relief under Rule 60(b)(6) [must] show ‘extraordinary circumstances’ justifying the reopening of a final judgment.” Id. at 535 (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)). And it explained in Agostini v. Felton, 521 U.S. 203 (1997), that “[i]ntervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6).” Id. at 239. Gonzalez illustrates the strength of the principle that a post-judgment change in decisional law does not require relief under Rule 60(b). The Rule 60(b) movant in Gonzalez was serving a 99-year term in Florida prison; the federal courts had rejected his habeas petition as time-barred without reaching the merits; this Court later issued an opinion inconsistent with that procedural determination; and the movant had “at least . . . a colorable claim of a constitutional violation” in his original criminal proceeding. 545 U.S. at 526-27, 536; id. at 542 (Stevens, J., dissenting). Nevertheless, a seven- Justice majority rejected his Rule 60(b) motion, id. at 536-38, because “[i]t [was] hardly extraordinary that subsequently, after petitioner’s case was no longer pending, this Court arrived at a different interpretation” of the law, id. at 536. The two dissenting Justices observed that “it would be within a district court’s discretion to leave . . . a judgment in repose” if “significant time has elapsed between a habeas judgment and the relevant change in procedural law.” Id. at 542 n.4 (Stevens, J., dissenting). Thus, all nine Justices agreed that a district court at least has discretion to deny a Rule 60(b) motion based on an intervening change in law. Gonzalez and Agostini reflect the principle that a change in law occurring after a case is over does

21 not provide a sufficient basis for disturbing a final judgment. See Biggins v. Hazen Paper Co., 111 F.3d 205, 212 (1st Cir. 1997) (Boudin, J.) (“Decisions con- stantly are being made by judges which, if reassessed in light of later precedent, might have been made differently; but a final judgment normally ends the quarrel.”). That principle should have led the court of appeals to conclude that the district court’s decision not to reopen this case was (at the very least) within its discretion. The court of appeals’ approach also cannot be squared with the governing standard of review. “Rule 60(b) proceedings are subject to only limited and deferential appellate review.” Gonzalez, 545 U.S. at 535 (citing Browder v. Director, Dep’t of Corrections, 434 U.S. 257 (1978)). As this Court explained in Browder, “[t]he Court of Appeals may review [a] ruling [on a Rule 60(b) motion] only for abuse of discretion.” 434 U.S. at 263 n.7. The question for the court of appeals was not whether it thought “the circumstances of this case” to be sufficiently “extraordinary” that “relief under Rule 60(b)(6) is warranted.” App. 9a. Instead, the question was whether the circumstances were so extraordinary that the district court could not reach any other conclusion but that reopening of the judgment was necessary. The Second Circuit could not have answered that question yes if it had followed Gonza- lez and Agostini. B. There Were No “Inconsistent Results” To Justify an Exception to Finality 1. The court of appeals paid lip service to the importance of finality, but reasoned that the rule that “a mere change in decisional law does not constitute an extraordinary circumstance for the

22 purposes of Rule 60(b)(6) . . . should not be followed here” because “[t]he procedural history of this case produced inconsistent results between two sets of plaintiffs suing for damages based on the same incident.” App. 7a (internal quotations omitted). That reasoning cannot be reconciled with well- understood principles. By its reference to “inconsistent results,” the Second Circuit did not mean that the cases had materially identical facts but reached different ultimate conclusions on liability. Indeed, the Second Circuit did not even mean that the cases had reached irreconcilable results on the issue of foreign sovereign immunity. On the contrary, Doe left open the possibility that Afghanistan would succeed in estab- lishing foreign sovereign immunity on some alternate ground, see 663 F.3d at 70-71, without compelling one result or another even in that particular case. Likewise, in this case, the court of appeals refused to consider whether the district court had been correct to throw the case out on discretionary-function grounds in 2005 or whether the United States had been correct to advise this Court in 2009 that the district court ruling was also correct under the entire- tort rule. Thus, the Second Circuit concluded that the case had to be reopened without even considering whether Doe would require a different result. Further, the Second Circuit failed to take into account the district court’s express finding that Saudi Arabia and the SHC, on the one hand, and Afghani- stan, on the other, “are different defendants with different sets of allegations regarding their activities,” so that “[t]he facts do not indicate that there is the possibility of such inconsistent determinations” as to justify reopening the case on that basis. App. 17a,

19a. For example, the former government of Afghan- istan is alleged to have permitted al Qaeda to operate the terrorist training camps in which the September 11 attacks were planned;15 there is no remotely comparable allegation against Saudi Arabia here. Under the Second Circuit’s approach, that finding – although made by the judge to whom Rule 60(b) granted discretion because of his much greater prac- tical knowledge of the case – became legally irrele- vant and not even worth mentioning. Because the court of appeals made no determination as to how the two cases would come out, and because it made no determination that the sovereign defendants in the two cases were similarly situated in any relevant way, its reference to “inconsistent results” meant merely that Saudi Arabia and the SHC benefited from a legal rule that was unavailable to Afghanistan due to a change in precedent. That is the type of “inconsistency” that this Court described in Gonzalez as “hardly extraordinary,” 545 U.S. at 536, and rejected as a basis for reopening a final judgment.

15 See Compl. ¶ 21, Doe v. Bin Laden, Civil Action No. 01- 2516 (RWR) (D.D.C. filed Jan. 4, 2002), cited in 663 F.3d at 67. The Bin Laden plaintiff also pleaded an actual “agree[ment]” between Afghanistan and al Qaeda “to conduct illegal and unlawful terrorist attacks on the United States, including . . . the terrorist attacks of September 11, 2001.” Id. ¶ 60; see Doe v. Bin Laden, 580 F. Supp. 2d 93, 95, 98 (D.D.C. 2008) (citing allegations that Afghanistan “unlawfully conspired with the Taliban and Iraq to conduct the September 11, 2001 attacks” and that Afghanistan “expressly agreed to conduct illegal and unlawful terrorist attacks on the United States”) (internal quotations omitted). By contrast, although Plaintiffs here have made (baseless) allegations that Saudi Arabia and the SHC “intended” or could have “foresee[n]” the events of September 11, see supra p. 2, they have never alleged that petitioners agreed to or participated in those events.

2. The Second Circuit’s departure from this Court’s Rule 60(b) precedents was also based on another erroneous premise that has implications for multidistrict litigation generally. The court of appeals relied heavily on the notion that this case and Doe are part of a centralized multidistrict litigation proceeding. The court observed that “the September 11 cases were centralized in part in order to prevent inconsistent pretrial rulings,” but that inconsistent rulings had nevertheless occurred “because of [Doe]’s late centralization with the Ter- rorist Attacks multi-district litigation,” as well as the Second Circuit’s “use of the unusual ‘mini-en banc’ process by which one panel overrules another.” App. 9a (internal quotations omitted). Even assuming that there is an “inconsistent results” exception to finality, it cannot stretch so broadly as to include the application of different legal rules to different cases involving different parties in the same multidistrict proceeding. If that were so, then no prevailing party (defendant or plaintiff) could rely on a final judgment in a case that is part of a multidistrict proceeding. Under the Second Circuit’s reasoning, any change in decisional law that affects a pending case in such a proceeding would require reopening of any final judgment that might also be affected by that change. That dramatic erosion of the traditional limits on Rule 60(b) relief is as unprecedented as it is unwise. Plaintiffs themselves got it right in 2005, when they sought and obtained the entry of final and immediately appealable judgments. In complex multidistrict litigation, it is more, not less, important to give a dismissed defendant – in Plaintiffs’ words – “the finality that such relief promises as soon as

25 possible, not years in the future, and without the substantial costs and uncertainty of being forced to monitor this litigation until an appeal finally ripens.” Supra p. 11. Plaintiffs were right then, and the Second Circuit is wrong now. Using the complexity of a proceeding as a basis to undermine finality sets a dangerous precedent, especially in a case involving a defendant entitled to immunity from suit. 3. The Second Circuit argued that its extra- ordinarily broad reading of “the interest in treating victims of the same tort consistently” was consistent with Gondeck v. Pan American World Airways, Inc., 382 U.S. 25 (1965) (per curiam). App. 8a. Gondeck does not come close to supporting the decision below. Gondeck’s husband was an employee at a defense base who was killed in a jeep accident. 382 U.S. at 26. In 1962, the Fifth Circuit held that she was not entitled to workers’ compensation. Id. That same year, this Court denied certiorari and then also rehearing. Id. In 1964, the Fourth Circuit held that the survivors of another employee who had been killed in the same accident were entitled to workers’ compensation, citing a case this Court decided in 1951 (i.e., one already decided at the time of the Fifth Circuit’s 1962 decision in Gondeck). Id. at 27. Other cases, including one from the Fifth Circuit itself, criticized the lower court’s decision in Gondeck as inconsistent with this Court’s precedent. Id. This Court had also reached a different result in another workers’-compensation case with similar facts. Id. Gondeck then sought leave to file a second petition for rehearing in this Court. Id. at 26. This Court granted rehearing. It explained that, because the Fifth Circuit had “misinterpreted” controlling precedent of this Court, and because,

“of those eligible for compensation from the accident, [Gondeck] stands alone in not receiving it, the inter- ests of justice would make unfair the strict application of our rules.” Id. at 27 (internal quotations omitted).16 Gondeck does not support the decision below for three reasons. First, and most importantly, Gondeck was a case about whether this Court should exercise its own discretion to grant relief under its own rules. Gondeck did not hold that it would have been an abuse of discretion for a court to deny similar relief even on identical facts. Second, Gondeck found that the Fifth Circuit’s ruling had been incorrect under then-controlling law. Thus, it was not dealing with the question whether a later change in law justified reopening an earlier judgment – the question that this Court addressed in Gonzalez and Agostini. Third, Gondeck involved a very close factual connec- tion between differently decided cases. The decedents in Gondeck were injured in the same accident; their survivors sought relief from the same defendant; and there appear to have been no relevant factual differ- ences whatsoever. The legal error that this Court corrected was the only difference between Gondeck winning and losing. As we have shown, supra pp. 21- 23, that was not so here.

16 Orders issued by this Court in the years since Gondeck indicate that the Court would be less likely to exercise its discretion in a similar way today. See Stephen M. Shapiro et al., Supreme Court Practice 834-35 (10th ed. 2013) (discussing Gondeck, Weed v. Bilbrey, 400 U.S. 982 (1970), and Economy Finance Corp. v. United States, 431 U.S. 926 (1977), and concluding that “[i]t seems likely . . . that the Court has decided no longer to grant out-of-time petitions for rehearing”).

C. The Court of Appeals Violated the Prin- ciple That Foreign Sovereign Immunity Should Be Resolved at the Outset of Litiga- tion The Second Circuit also failed to respect an important principle underlying the FSIA – namely, the principle that, because foreign sovereign immunity provides immunity not only from liability but also from suit, a foreign state’s claim to immunity should be resolved as early as possible in the litigation. 1. This Court has recognized that certain types of immunity protect defendants not only from liability but also from suit – i.e., from the burdens of litigation. For example, in Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court explained that, because qualified immunity is “an immunity from suit rather than a mere defense to liability,” it is “an entitlement not to stand trial or face the other burdens of litigation.” Id. at 526 (second emphasis added); accord Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (same; state sovereign immunity); see Siegert v. Gilley, 500 U.S. 226, 232 (1991) (“One of the purposes of immunity, absolute or qualified, is to spare a defendant not only unwarranted liability, but unwarranted demands custom- arily imposed upon those defending a long drawn out lawsuit.”). For that reason, this Court “repeatedly ha[s] stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotations omitted). Foreign sovereign immunity is an immunity from suit to which those principles apply with full force. Under the FSIA, a foreign state is “immune from the jurisdiction of the courts of the United States” unless

28 a statutory exception applies. 28 U.S.C. § 1604. The purpose of that immunity is to protect foreign sovereigns “from the inconvenience of suit,” and it serves as an important “gesture of comity between the United States and other sovereigns.” Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003). Accordingly, numerous lower courts have recognized that immunity under the FSIA “is an immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits.” Rush-Presbyterian- St. Luke’s Med. Ctr. v. Hellenic Republic, 877 F.2d 574, 576 n.2 (7th Cir. 1989); accord, e.g., Foremost- McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990); see Segni v. Commercial Office of Spain, 816 F.2d 344, 347 (7th Cir. 1987) (Posner, J.) (“A foreign government should not be put to the expense of defending what may be a protracted lawsuit without an opportunity to obtain an authoritative determination of its amenability to suit at the earliest possible opportunity.”). 2. The Second Circuit’s decision cannot be reconciled with this Court’s emphasis on “the importance of resolving immunity questions at the earliest possible stage in litigation,” Pearson, 555 U.S. at 232 (internal quotations omitted). As we have shown, the Second Circuit’s holding in Doe overruled only that court’s 2008 holding in this case that the FSIA’s torts exception is categorically inapplicable in terrorism cases. It did not address either the original basis for the district court’s judgment dismissing petitioners (the discretionary-function exclusion) or the entire- tort rule. See supra p. 14. Saudi Arabia and the SHC argued both to the district court and to the court of appeals that each of those grounds provides an independently sufficient reason for declining to reopen the judgments dismissing them from this

29 litigation. See, e.g., Pet’r C.A. Br. 49-56. Further, the district court relied explicitly on its earlier discretionary-function ruling in denying Rule 60(b) relief.17 The Second Circuit’s refusal to apply the entire-tort rule to this case is particularly inexplicable because a different panel of the Second Circuit joined the Sixth and D.C. Circuits in adopting the entire-tort rule while this case was pending and applied it to a related case against different instrumentalities of the Kingdom of Saudi Arabia. See In re Terrorist Attacks on September 11, 2001, 714 F.3d 109, 116 (2d Cir. 2013) (citing O’Bryan v. Holy See, 556 F.3d 361, 382 (6th Cir. 2009); Asociacion de Reclamantes v. United Mexican States, 735 F.2d 1517, 1525 (D.C. Cir. 1984) (Scalia, J.)). It thus held that, “[f]or th[e] [torts] exception to apply, . . . the ‘entire tort’ must be committed in the United States.” Id. at 115. Applying that rule to two Saudi agencies (the SJRC and the SRC), that panel held that Plaintiffs’ allegations that the September 11 attacks were “a result of” actions allegedly “taken by the SJRC and the SRC abroad – namely, allegedly contributing financial and other resources to support Osama Bin Laden and al Qaeda” – were “insufficient to satisfy” the entire-tort rule. Id. at 116-17.18

17 App. 19a-20a (noting that Doe did not contain “any impli- cation that Judge Casey’s analysis was inappropriately done or procedurally invalid”); see supra note 4 (noting that two district judges presided over this case at different times). 18 To support that conclusion, the Second Circuit noted that Plaintiffs had not alleged that the SJRC or the SRC, or any of their employees, had “committed any tortious act in the United States” but instead argued that “the SJRC and the SRC can be held liable simply because ‘personal injury, death or property damage occurred in the United States.’ ” 714 F.3d at 117 (alter-

D. The Court of Appeals Was Required To Con- sider Alternative Grounds for Affirmance 1. In refusing to consider any alternative basis for sustaining the dismissal, the court of appeals relied on the rule that the appeal of a denial of Rule 60(b) relief does not permit an appellate court to “reach the underlying merits of the judgment” that the district court has refused to reopen. App. 11a; see also App. 7a (“The appeal from the denial of a motion to vacate pursuant to Rule 60(b) brings up for review only the validity of that denial, not the merits of the underlying judgment itself.”) (internal quotations omitted). The court misconstrued the meaning and purpose of that rule. It is true (and well-established) that an appeal from the denial of a Rule 60(b) motion does not permit a disappointed movant – here, Plaintiffs – to attack the merits of the underlying judgment. Otherwise, an appeal after a Rule 60(b) motion would be no different from a direct appeal, and Rule 60(b) could not do its job of protecting the finality of judgments. See, e.g., In re Design Classics, Inc., 788 F.2d 1384, 1386 (8th Cir. 1986) (“Rule 60(b) relief is not appropriate as a substitute for direct appeal of a judgment”). But that important principle has never been thought to authorize (much less require) that a case be reopened on the basis of a legal error that would not have affected the ultimate outcome. It is hard to imagine a more appropriate consideration for the district court to take into account than the question whether

ation omitted). Plaintiffs made the same argument in this case, relying not on any action of Saudi Arabia or the SHC, or any of their employees, but on the conduct of “the al-Qaeda hijackers [who] boarded planes in Boston, Newark, and Washington, D.C.” Resp. C.A. Reply Br. 29-30.

31 renewed litigation is likely to produce a separate result. In this case – where the district court had already dismissed Plaintiffs’ claims against Saudi Arabia and the SHC – the district court was within its discretion to find that consideration controlling. That conclusion is reinforced by the familiar principle that an appellate court can always affirm a lower court’s decision for reasons different from those given by the lower court. See, e.g., Thigpen v. Roberts, 468 U.S. 27, 30 (1984) (“[W]e may affirm on any ground that the law and the record permit and that will not expand the relief granted below.”). The Second Circuit itself applied that principle when it affirmed the dismissal of the “similarly-situated” sovereign defendants (the SJRC and the SRC) under the entire-tort rule. See Terrorist Attacks, 714 F.3d at 112, 117. And this Court has also applied that principle in the Rule 60(b) context. For example, in Gonzalez, this Court explained that, “[a]lthough the Eleventh Circuit’s reasoning is inconsistent with our holding today, we nonetheless affirm its denial of petitioner’s Rule 60(b) motion.” 545 U.S. at 536. It would be perverse indeed if the normal practice of affirming on other grounds did not apply in Rule 60(b) proceedings. It would mean that a court of appeals must reverse a denial of Rule 60(b) relief – a decision this Court has said is “subject to only limited and deferential appellate review,” id. at 535 – even when, on de novo review, it would have affirmed the underlying judgment on an alternative ground. 2. The Second Circuit also contended that the district court committed an “error of law” in assuming that the panel on appeal could review the merits of the underlying judgment. App. 7a. That was not a fair or reasonable characterization of the court’s ruling. Read in the context of his entire oral ruling,

32 it is clear that Judge Daniels was merely indicating that the Second Circuit could decide whether he had erred in refusing to reopen the case based, in part, on the earlier discretionary-function ruling that had not been called into question by Doe.19 3. The Second Circuit further argued that denying Rule 60(b) relief would “allow[] the District Court’s application of the discretionary function limitation [in 2005] to go unreviewed.” App. 7a. But the court identified no authority supporting its unprecedented use of Rule 60(b) to reopen a final judgment simply to allow for further review of a district court ruling that has not been affected by any change in law. Plaintiffs had the statutory right to appeal the original judgment, and they exercised that right and received a full hearing from the Second Circuit, as well as substantial consideration of their certiorari petition by this Court. Plaintiffs did not have the right to a decision that specifically addressed any particular issue (much less a decision in their favor). Further, Plaintiffs’ right to an appeal from the district court’s original 2005 and 2006 rulings was (necessarily) a right to an appeal under the law as it stood at the time. The Second Circuit determined that, under the law of that circuit in 2008, it did not need to address the discretionary-function exclusion. Plaintiffs do not now have any right to a new decision based on a change of circuit precedent in 2011, long after the judgment in this case became final. ***

19 See App. 19a (“if the plaintiffs believe that the Circuit’s opinion would compel the Circuit to indicate that the plaintiffs are entitled to some relief from Judge Casey’s determination with regard to Saudi Arabia, then they should appeal this denial to the Circuit”).

Extraordinary circumstances are necessary to reopen a final judgment, and this Court’s decisions make clear that a change in law is not an extraordinary circumstance. The Second Circuit flouted that rule in this case. It also violated settled principles of review by substituting its own judgment for that of the district court, adopted a rule that will undermine finality in multidistrict proceedings, and disregarded the importance of a timely determination of foreign sovereign immunity. Its decision will subject an important ally of the United States to years of further litigation on the basis of decade-old claims that the 9/11 Commission has declared factu- ally baseless, that the United States has argued to this Court are legally barred, and that have never been sustained past a motion to dismiss by any court. CONCLUSION The petition for a writ of certiorari should be granted, and the court of appeals’ judgment should be reversed, either summarily or after plenary review. Respectfully submitted,