TERRORISTS : GETTING THEM INTO FEDERAL COURT IN THE USA.

Before one may bring a terrorist based action in US courts one must first deal with some threshold issues, any of which may render an action non cognizable. If this is the result then, no matter what any US court does the foreign entity can always raise the question of jurisdiction. If the US court never had jurisdiction then the subsequent judgment is void at law.

The doctrines of “Forum Non Conveniens,” Erie v. Tompkin, venue, diversity, and jurisdiction all play the threshold and major roles in the questions that ask: Can I sue a foreign entity in a US court; if so where and how do I lay my venue; and whose law is applied?

Erie v. Tomkins is a land mark case that essentially says that the Federal courts in diversity actions will apply the host state’s substantive law (usually that means statutory law) and the Federal rules of procedure (usually meaning the rules of Court). However any law student can attest that Erie is nothing quite so simple as that after a whole semester struggling with the hundreds if cases interpreting it. In actions involving contracts and matters that arose in foreign jurisdictions the courts often attempt to use foreign law to find a just result as the parties might have envisioned it in the place where the matters arose. This can be a very difficult and sticky set of issues.

The doctrine of “forum non conveniens” inheres in these types of actions. The question in that is “how inaccessible are the courts of other jurisdictions?” It’s a balancing test.

Jurisdiction and Venue are the selection of what court: Federal or state, if Fed then in what state, or will it be a foreign court. What law applies is involved too.



It is well settled law that foreign nationals and U.S. entity (person or Corp.) may bring an action in any of the sevral Fed District Courts. The venue ( is laid based on diversity of citizenship and a threshold sum of money in question. The diversity jurisdiction statute, 28 U.S.C. §1332(a)(2), provides in part that: “The District Courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, […] and is between citizens of a State and citizens or subjects of a foreign State.” This is also called Alienage Jurisdiction because it reaches to encompass others outside the USA whose harms have reached into the USA. Interestingly those people who think that Dual citizenship in both the US and another nation which also happens to be the nation where the defendant entity resides do not benefit from alienage jurisdiction because they could just go home and sue.

The specific Fed District where venue is laid will be constrained inter alia by the doctrine of forum non conveniens. Courts tend to prefer districts where the plaintiff lives, works, owns property or where the harms occurred. The is is that there should be a logical nexus between the venue and the plaintiff (or defendant).

Product liability issues have usually found the venue best laid in the forum where the manufacturer produced made the item or where it was consumed (where the harm occurred).

The doctrine of forum non conveniens is also used as a weapon by defendants to have a US action transferred to their more favorable foreign national jurisdiction.

The foundational case on that point is Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), (light plane in Scotland). The decedents were all Scottish citizens. Plaintiff brought suit In state court in Calif but it was transferred to PA Fed Dist Court on gronds of Forum Non Conveniens. They ended up on The US Supreme Court to settle the venue issue. The Supreme Court then laid the rules out for the application of the doctrine.

Plaintiff’s complaint that the less favorable foreign law of some other state or nation coupled with United States’ public policy interest in deterring Foreign nationals from harming US citizens - - AND - - US based manufacturers from producing defective products, compels trial in the US. In Piper the law of Scotland disfavored the plaintiffs in ways that reached into substantively and procedural law. Essentially Plaintiffs averred that Scotland’s laws make it hard to victims of badly made products to sue and get relief. The US Supremes were un impressed and held that Harsh foreign laws – stand ing alone – are not cause for laying venue in the USA and that Plaintiff’s choice of forum is less weighty when Plaintiff is a foreigh national ( which is was) seeking the more favorable laws of the USA. (This is called “forum shopping” in the profession).

When offending entity is a foreign subsidiary of a US corporation, and the Plaintiff is a citizen of some other nation seeking to sue in the USA in federal district court, things can be different. Some courts apply what is called the Rule of Attribution.

It attributes the citizenship of the foreign subsidiary to the US parent company resulting in a claim that is not cognizable in the USA because at that point it’s between citizens of a foreign nation.
But, it doesn’t always work this way. Not all courts will apply it in the same linear fashion. Attribution can become very sticky.


WASN’T THAT FUN?
NOW ONTO TERRORISM AND FOREIGN NATIONALS AND COUNTRIES.

In 1990 (subsequent to the Achille Lauro) a law (18 U.S.C.A. § 2333) was passed that said "Any national of the United States injured in his or her person, property or business by reason of an act of international terrorism […] may sue therefore in any appropriate district court of the United States and shall recover threefold the damages he or she sustains" There have been over 20 lawsuits invoking this law.

In April 1996, the Antiterrorism and Effective Death Penalty Act, criminalized terrorism and international terrorism when the attack takes place in the US or the US is used as the base from which to plan attacks in other nations. This law has not been without substantial challenges.
The law authorizes the U.S. Secty of State to designate any foreign entity engaging in terrorist activity as official “Terrorist Organizations” (sort of makes you wonder if they get a certificate). The DOS produces a bi-annual list of these organizations. Their funds world wide are frozen. A US citizen can’t donate money, weapons etc., etc., etc., (the language used is "material support") to these organizations. Persons identified as members of those organizations can’t get Visas and are on a watch-list and may not fly on a US air liner.
American supporters of two designated foreign terrorist organizations, the People's Mojahedin Organization of Iran (also known as the Mujahidin-e Khalq) and the Liberation Tigers of Tamil Eelam (LTTE) sued the Department of State (People's Mojahedin Organization of Iran v. U.S. Department of State) challenging the Secretary of State's designation procedure on constitutional grounds.
In June 1999, the U.S. Court of Appeals in DC, held that the constitutional rights of the “Tamil Tigers” and the “Iranian Mojahedin” (2 such groups) were not violated they didn’t have any "property or presence" in the US, and that foreign terrorist entities have no "due process right to notice and a hearing." Whatthe Dist Court did do for the foreign entities was to allow then a right to challenge the designation as “terrorist” on statutory grounds saying "they may ... seek our judgment about whether the Secretary followed statutory procedures, or whether she made the requisite findings, or whether the record she assembled substantially supports her findings." This essentially means the foreigner terrorists can inquire whether the Secty of State followed the law and rules when the Secty of State designated them officially as terrorists. However, in the cases of the Tamil Tiger and Iranian Mojahedin, the court didn’t give them any favor finding them to be properly designated as terrorists.

Can a US citizen sue a Foreign Countries for Damages in the USA? (finally as to your question)
Pursuant to that same 1996 Antiterrorism and Effective Death Penalty Act, US citizens harmed by international terrorism may bring a Federal action against a foreign country so long as that country is designated by the U.S. as state sponsors of terrorism.

Alisa Flatow’s family were the first IS citizens to invoke this new law., Their daughter was killed in the Gaza by a suicide bomber in 1995. The claimed that “Islamic Jihad” sid it and that Iran supported them. The Flatows obtained a damages award of more than $247-million against Iran. Two other families (victims Sarah Duker and Matthew Eisenfeld) followed soon there after based on a bus bombonf in Jerusalem.
Hezbollah kidnapped Terry Anderson in 1985 by and held him in Lebanon for 7 years. In March 2000, claiming that Iran supported Hezbollah they obtained a federal court damages award for more than $341-million against Iran.

COLLECTING ON THE DAMAGE AWARDS IS AN ALTOGETHER DIFFERENT MATTER.

In 1988 Congress passed a bill that authorizes and requires DOS and Treasury Dept to help these people collect the awards. The legislation also allows the President to side step the law based on National Security.
Bill Clinton refused to enforce this law and refused to allow the Flatlows to seize Iranian property and money that was then in the USA. Madeleine Albright then Secty of state) made some public talks about trying to help terrorism victims but, nothing ever came of it.

Senators Connie Mack (R-FL) and Frank Lautenberg (D-NJ) offered up new legislation that would set up a process for successful US plaintiff/victims to recover their judgments by allowing U.S. courts to tap a limited array of frozen assets of terrorist-linked nations. Mack revived this bill in 2005. It still is not law.

So the up shot is that you can sue and you can win and your win can be proper at law but, you still can not collect.