James Owens, et al. v. The Taliban, et al.

Half a century ago, Congress passed the Foreign Sovereign Immunities Act of 1976 to “transfer primary responsibility for deciding ‘claims of foreign states to immunity’ from the State Department to the courts.” Samantar v. Yousuf, 560 U.S. 305, 314 (2010) (quoting 28 U.S.C. § 1602). This Court has since recognized that “interpretation of the FSIA’s reach” poses “a pure question of statutory construction … well within the province of the Judiciary.” Republic of Austria v. Altmann, 541 U.S. 677, 701 (2004) (quotation marks omitted). In a divided opinion, the Second Circuit broke from this view. When determining whether funds held by Da Afghanistan Bank (“DAB”), a Talibancontrolled entity, are immune from attachment under the FSIA, the court found that it was “bound” to answer that question in the affirmative because of an online State Department fact sheet listing Afghanistan as an “independent state[]” and a threepage Department of Justice district court filing describing DAB as the central bank of the otherwise defunct state of Afghanistan. See App.24 & n.67. The panel denied rehearing, App.91, and the full court denied rehearing en banc, with five judges dissenting, App.94, 96–131. The question presented is: Does the FSIA require courts to independently interpret its provisions, or must a court defer to State Department websites and Department of Justice litigation filings in determining whether an entity is entitled to sovereign immunity under the FSIA?