Owens v. Taliban

Background

The plaintiffs were surviving victims, estates of deceased victims, and family members connected to the 1998 bombings of U.S. embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya. They alleged that al-Qaeda carried out the attacks and that the Taliban assisted al-Qaeda and Osama bin Laden by providing support including weapons, training, facilities, and protection.

After the Taliban retook control of Afghanistan in 2021, it claimed approximately $7 billion in Afghan central-bank assets held at the Federal Reserve Bank of New York. A February 2022 executive order issued by President Joseph R. Biden blocked the Taliban from moving or using those assets and designated half of them for payment of civil judgments obtained by terrorism victims. The plaintiffs filed this case and sought an ex parte emergency order—an order requested without advance notice to the opposing party—to attach funds before obtaining a judgment.

The plaintiffs sought attachment of approximately $4.6 billion in Taliban assets, plus prejudgment interest. For the funds at the Federal Reserve Bank of New York, they sought approximately $1.4 billion plus prejudgment interest, representing the funds not already attached in connection with other proceedings.

Legal standard

Federal Rule of Civil Procedure 64 required the court to apply New York law to the request. Under New York law, a plaintiff seeking prejudgment attachment had to show: (1) a claim that could result in a money judgment; (2) a probability of success on the merits; (3) a statutory ground for attachment; and (4) that the amount sought exceeded any known counterclaims. The court also explained that attachment is an extraordinary remedy ordinarily used sparingly, but that a court generally must grant it when the statutory requirements are satisfied.

Because the request was made without notice, New York law required the plaintiffs to later serve a motion asking the court to confirm the attachment within the applicable time period. The court found that the plaintiffs had provided sufficient reasons for proceeding without advance notice.

Application of the standard

Money claims. The plaintiffs asserted claims under the Anti-Terrorism Act, 18 U.S.C. § 2333(a), the Alien Tort Statute for foreign plaintiffs, and New York tort law. The court held that these claims could result in money judgments and therefore satisfied the first requirement.

Probability of success. The court concluded that at least some plaintiffs were likely to succeed on their Anti-Terrorism Act claims. It explained that such a claim requires unlawful action, the required mental state, and causation. The plaintiffs alleged that the Taliban violated federal criminal laws by harboring or concealing terrorists, providing material support, and conspiring to kill U.S. nationals. They relied on evidence concerning the Taliban’s protection and support of bin Laden, bin Laden’s calls for violence against the United States, and criminal indictments and other documents concerning the embassy bombings.

The court also considered the Anti-Terrorism Act’s 10-year statute of limitations. Although the plaintiffs had not addressed that defense in their written submission, the court found that the defense did not defeat their showing at this stage because it was an affirmative defense and the plaintiffs had colorable arguments for statutory or equitable tolling.

The court separately concluded that the foreign plaintiffs were likely to succeed on their Alien Tort Statute claims. Those plaintiffs alleged that the Taliban aided conduct violating the rights of ambassadors, which the court recognized as a violation of the law of nations that can support an Alien Tort Statute claim. The court found that the same evidence supporting the Anti-Terrorism Act claims also supported causation. It likewise concluded that the statute-of-limitations issue did not defeat the plaintiffs’ likelihood of success at this stage because they had colorable arguments for equitable tolling.

Ground for attachment and need to secure funds. The plaintiffs relied on New York’s provision allowing attachment when the defendant is a nonresident outside New York. The court held that they also had to show that the Taliban had assets in New York that could satisfy a judgment and that there was a reasonable fear that a future judgment would not be satisfied.

The court recognized that other terrorism victims had existing judgments or execution proceedings involving the Taliban and that the plaintiffs’ request could give them priority among creditors. It held, however, that priority could not itself justify granting the attachment, nor could the possibility of priority justify denying it. The court found that the Taliban’s limited assets in the United States and the possibility that the funds could be distributed supported a reasonable need to secure the remaining funds. Existing writs of execution and related turnover proceedings were not displaced by the plaintiffs’ request because the plaintiffs sought only funds that had not already been attached.

The court did not decide whether the funds actually belonged to the Taliban. It stated that this ownership issue was not ready for final decision and would likely be addressed in later proceedings concerning turnover of the funds.

Counterclaims and disposition

The court accepted the plaintiffs’ representation that the Taliban had no known counterclaims exceeding the amount sought. It therefore concluded that all requirements for prejudgment attachment had been satisfied and granted the plaintiffs’ ex parte emergency motion. Judge Valerie Caproni did not enter a final judgment on the plaintiffs’ underlying claims in this opinion.