Havlish v. Bin-Laden

Background

The opinion concerns objections to Magistrate Judge Sarah Netburn’s denial of the Amduso Plaintiffs’ motion to intervene in multidistrict litigation arising from the September 11, 2001 attacks. The Amduso Plaintiffs consisted of a group led by Milly Amduso, including 157 United States government employees killed or injured in the 1998 Al Qaeda bombings of the American Embassies in Kenya and Tanzania, their family members, and estate representatives.

The Amduso Plaintiffs sought to intervene to obtain a declaration that neither they nor any other plaintiffs in the multidistrict litigation were entitled to assets of Da Afghanistan Bank, Afghanistan’s central bank, held at the Federal Reserve Bank of New York. Those assets had been frozen by the United States after the Taliban returned to power in 2021.

The Havilish Plaintiffs had sought to use those funds to satisfy default judgments against the Taliban. Other plaintiffs also sought the funds. The district court later denied the turnover motions, ruling that it lacked jurisdiction over an instrumentality of a foreign sovereign and that separation-of-powers concerns counseled against the judiciary deciding the matter of international relations.

Review of the Intervention Request

The Amduso Plaintiffs timely objected to Magistrate Judge Netburn’s order. Because the order disposed of their claims, the district court reviewed the challenged portions independently under Federal Rule of Civil Procedure 72. The court overruled the objections and affirmed the order in its entirety.

The court first concluded that the intervention request was at least superfluous and likely moot. The Amduso Plaintiffs sought to block efforts to attach the Afghan funds, but the court had already denied the relevant turnover motions. Because the attachment efforts had already been denied, the district court could not identify a current question whose resolution would affect the rights of the parties or proposed intervenors. The court therefore stated that intervention based on a moot issue would be inappropriate.

Intervention as of Right

Rule 24(a) allows intervention as of right when an applicant meets several requirements, including showing a timely application, an interest relating to the property or transaction involved, a risk that the action may impair protection of that interest, and inadequate representation by existing parties. The court explained that the required interest must be direct, substantial, and legally protectable.

The Amduso Plaintiffs argued that they had an equal interest in the funds because the existing plaintiffs had no entitlement to them. The court rejected that reasoning. The Amduso Plaintiffs had not shown that their asserted interest in a fair and equitable distribution of Afghan funds was legally protectable. Moreover, they asked the court to declare that no party, including themselves, had a cognizable interest in the funds. The court reasoned that asserting a right they sought to establish did not provide a sufficient basis to intervene.

The court also rejected the argument that the existing plaintiffs’ alleged lack of entitlement made the Amduso Plaintiffs’ own lack of a sufficient interest irrelevant. It treated the proposed intervenors’ interest as a separate requirement from whether existing parties adequately represented that interest. Because the Amduso Plaintiffs did not show a sufficient interest in the funds, the court did not decide their requested declaration about the other plaintiffs’ rights to the funds.

Permissive Intervention

Rule 24(b) permits intervention when an applicant’s claim or defense shares a common legal or factual question with the main action, subject to considerations such as undue delay or prejudice. The court held that the additional factors also weighed against permissive intervention.

The court characterized the Amduso Plaintiffs’ interest as abstract rather than direct, substantial, and legally protectable. It further stated that, even assuming their interest was sufficient, existing parties already shared their objective of limiting or defeating the Havilish and Doe Plaintiffs’ entitlement to the Afghan funds. The Amduso Plaintiffs also did not claim that they could contribute to developing the underlying factual issues. Allowing them to intervene based on claims arising from a different set of facts would add complexity to litigation that had continued for more than two decades and involved tens of thousands of plaintiffs.

The court separately accepted Magistrate Judge Netburn’s conclusion, reviewed for clear error because it was not specifically challenged, that factors governing jurisdiction over the requested declaratory-judgment claim weighed against extending jurisdiction if the court reached that issue. The district court did not decide the requested declaration on its merits.

Disposition

The court overruled the Amduso Plaintiffs’ objections to Magistrate Judge Netburn’s order denying intervention and affirmed that order in its entirety. The opinion did not grant the requested declaratory relief.