For the second time in recent years, the Supreme Court has turned to the federal government for advice on whether lawsuits should be allowed to go forward to fix legal blame for the deaths, injuries, and property damage done by the terrorist attacks on the United States on September 11, 2001.  This time, the lawsuits target, among others, members of the family of the late terrorist leader, Osama bin Laden, and his family businesses.

On Monday, the Court asked the U.S. Solicitor General for the government’s views on the case of O’Neill v. Al Rajhi Bank.  There is no timetable for the government to answer.  Justice Elena Kagan did not take part in the order, presumably because she had a role as U.S. Solicitor General in advising the Court in  an earlier round of such 9/11 challenges, leading to a denial of review of that case in 2009.

The new lawsuits — most of which were dismissed by the U.S. Court of Appeals for the Second Circuit in three separate rulings in April — were aimed at organizations and individuals alleged to have knowingly supported bin Laden and his al Qaeda terrorist network in the years before the 9/11 attacks, by managing and supporting charities that were said to be “fronts” for terrorist activity.

Those sued included businesses owned by the bin Laden family, some of his family members, and an alleged principal financial support entity for al Qaeda.  The lawsuits contended that the actual attacks were a foreseeable end-result of the kinds of support given to organizations related to al Qaeda.

The lawsuits were filed on behalf of thousands of individuals — family members of the nearly 3,000 individuals killed in those attacks, thousands who were injured that day by the attacks, and a group of commercial entities claiming billions of dollars in property damage and other losses as a result of the attacks.

In taking the case on to the Supreme Court, those who sued asked the Justices to rule on whether there can be liability for aiding and abetting a violation of the Anti-Terrorism Act, and whether U.S. courts have jurisdiction to hear claims against foreign organizations and individuals who knew of the terrorist plans of the al Qaeda groups.

Those are the issues on which the Solicitor General will comment in advising the Court whether it should hear and decide the dispute.

In a time when there is much public conversation about the problem of bullying by school-age youth, the Court chose to bypass that issue in a test case from a high school in Beaver Falls, Pennsylvania.  The denied case was Morrow v. Balaski, involving two sisters who sued the school and a principal over repeated physical violence and harassment by another student at their high school.

The lawsuit by the sisters and their parents was an attempt to hold the public schools to blame legally for failing to provide safety for them while they were at school.  While sympathizing with the girls’ plight, the en banc Third Circuit in a nine-to-five split ruled that Supreme Court precedent does not establish a constitutional duty on public school officials to act against student-on-student violence.  The Supreme Court has never ruled in a definitive way on that specific issue; it gave no reason for turning aside the case on Monday.

Among other cases denied review by the Justices, before they began a four-week holiday and winter recess, were cases raising these issues:

** The constitutionality of a flat ban on wearing political buttons, badges or other displays on one’s clothing or person at an election polling place. The ban was upheld in lower courts.  (Minnesota Voters Alliance v. Mansky)

** A plea by an oil drilling services company seeking to revive a federal judge’s contempt order against the Department of the Interior for reinstating a moratorium on deep-water oil drilling in the Gulf of Mexico following the massive oil spill after an explosion and fire on  a drilling platform in April 2010.  A contempt order was nullified by a federal appeals court.  (Hornbeck Offshore Services v. Jewell)

** A claim that federal worker safety law displaces a series of New York City regulations that impose safety rules on cranes, derricks, and other hoisting equipment on construction jobs in the city. The preemption claim was rejected by lower courts. (Steel Institute of New York v. New York City)

** The constitutionality of a Michigan law that keeps candidates off the general election ballot because they had run in a primary election on a different party’s slate.  The challenge by a third party contended that such a law may not be applied to the presidential election. That was rejected in lower courts. (Libertarian Party of Michigan v. Johnson)

** A plea to the Court to further clarify what proof of injury there must be before a lawsuit against a company can proceed as a class action.  The issue was raised in a case claiming that there must be solid proof that someone in the class actually suffered an injury before the case may proceed on a class basis.  It involved an employee lawsuit against a major aerospace company, Lockheed Martin Corp., over losses in an employment retirement plan.  (Lockheed Martin v. Abbott)

The Court’s next scheduled activity is a private Conference on January 10, followed by a resumption of oral arguments on January 13.

Posted in O’Neill v. Al Rajhi Bank, Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Liability for 9/11 at issue, SCOTUSblog (Dec. 16, 2013, 11:27 AM),