Court analysis of FSIA torts exception and Saudi Arabia immunity

794 court shall decline to hear a claim under this paragraph (A) if the foreign state was not desig- nated as a state sponsor of terrorism 28 U.S.C. § 1605(a)(7) (emphasis added). The parties agree that the Kingdom of Saudi Arabia has not been designated a state sponsor of terrorism. See 28 U.S.C. § 1605(a)(7)(A) (explaining there is no ju- risdiction if “the foreign state was not designated as a state sponsor of terrorism under ... the Export Administration Act of 1979 ... or ... the Foreign Assistance Act of 1961”). Thus, this exception does not provide an exception to immunity for any of the Defendants raising the FSIA defense here. 3. Torts Exception In relevant part, the torts exception de- prives a foreign sovereign of immunity in actions: in which money damages are sought against a foreign state for personal inju- ry or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omis- sion of that foreign state or of any offi- cial or employee of that foreign state while acting within the scope of his of- fice or employment; except this [excep- tion] shall not apply to - (A) any claim based upon the exercise or performance or the failure to exer- cise or perform a discretionary func- tion regardless of whether the discre- tion be abused. 28 U.S.C. § 1605(a)(5). Second Circuit law instructs that district courts must de- termine whether the defendant’s alleged acts were tortious under the laws of New York and, if so, whether the defendant’s acts were discretionary. Robinson, 269 F.3d at 142 (If those activities could not render the Malaysian government liable 349 FEDERAL SUPPLEMENT, 2d SERIES for a tort under New York law, then it remained immune under § 1605(a)(5).”). In the event that the act is tortious and the acts were not discretionary, the alleged tortfeasor is subject to suit under the FSIA. [19] The FSIA’s discretionary function exception replicates the discretionary func- tion exception found in the Federal Tort Claims Act. See 28 U.S.C. § 2680(a). Courts have found both exceptions are “in- tended to preserve immunity for ‘decisions grounded in social, economic, and political policy”” Marchisella v. Gov't of Japan, No. 02 Civ. 100238(DC), 2004 WL 307248, at *2 (S.D.N.Y. Feb. 17, 2004) (citing United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) (interpreting FTCA)). Generally, acts are discretionary if they are per- formed at the planning level of govern- ment, as opposed to the operational level. Kline v. Kaneko, 685 F.Supp. 386, 392 (S.D.N.Y.1988) (finding decision to expel plaintiff from Mexico was product of en- forcement of immigration laws and there- fore a discretionary function); Marchisel- la, 2004 WL 307248, at *2 (finding decision regarding placement of a water hose on a ship was an operational function and there- fore not discretionary and not protected by the FSIA); Napolitano v. Tishman Constr. Corp., No. 96 Civ. 4402(SJ), 1998 WL 102789, at *4 (E.D.N.Y. Feb. 26, 1998) (finding purchasing consulate buildings and hiring contractor to renovate is a plan- ning function and therefore discretionary). Defendants argue that the Court should not even consider the torts exception for two reasons. First, they claim that for this exception to apply, the entire tort must have occurred in the United States, which Defendants argue is not the case here. Second, Defendants claim that Plaintiffs impermissibly seek to contort a HOUSE_OVERSIGHT_017859