Justices look for narrow solution to lawsuit for funding Hamas attacks

WASHINGTON (CN) — After blocking families of Holocaust victims from hauling foreign nations before American courts earlier this term, the Supreme Court appeared tentative Monday to issue a final edict tanking a suit seeking accountability for Hamas terrorist attacks.

Relatives of Israeli terror attack victims in the early 2000s want to resurrect charges against BLOM Bank under the Justice Against Sponsors of Terrorism Act. The families claim that the bank knowingly provided financial assistance to Hamas associates.

However, the bank argues that the families were unlawfully pursuing a never-ending lawsuit that a lower court already put to rest.

“The case was filed in 2019,” Matthew McGill, an attorney with Gibson Dunn representing the bank, told the justices. “It’s about events that occurred 25 years ago. We won dismissal in 2021, we won affirmance in 2022, and somehow we’re here three years later talking about a zombie case that should have been over years ago.”

The Supreme Court agreed to answer a procedural question about the standard for reopening a judgment to amend a complaint. During Monday’s prompt argument session lasting less than an hour, the justices seemed to agree with the bank’s arguments but shied away from casting the final vote.

“You want us to go a step further and actually look at the facts here and say they weren’t extraordinary circumstances,” Justice Sonia Sotomayor, a Barack Obama appointee, said.

Under the provision at the center of the dispute, the families needed to show extraordinary circumstances to amend a complaint after the lower court issued a final judgment.

Justice Ketanji Brown Jackson, a Joe Biden appointee, hesitated to join the ranks of her colleagues, worrying that the ruling burdened the right to appeal.

“What I’m worried about is that you are making the ability to bring the claim contingent on whether or not you pursue your right to appeal,” Jackson said. “You’re saying: It’s OK to amend if you don’t appeal, but, if you appeal and you lose, you’re not going to be able to amend anymore.”

But even both advocates agreed — sometimes begrudgingly — on a narrow holding that would send the case back to the Second Circuit for another review.

“What objection would you have to a short opinion from this court saying simply that the Rule 60(b) standard applies … go back and try again?” Justice Neil Gorsuch, a Donald Trump appointee, asked.

Both advocates said the narrow solution would suffice.

A similar outcome appeared likely in the other case before the justices on Monday. An Indian corporation asked the court to clarify the standard for foreign nations seeking to enforce arbitration agreements in American courts.

“An arbitral award against a foreign state is worth little if no courts can enforce it,” Aaron Street, an attorney with Baker Botts representing Devas Multimedia Private, told the justices.

Devas is an Indian corporation contracted by Antrix Corp, a government-owned commercial arm of India’s space department, to provide satellite telecommunication. The Indian government ordered Antrix to terminate the contract with Devas, however, seeking ownership of an S-band spectrum that was supposed to be a lease in the contract.

Devas won $562.5 million in damages from an International Chamber of Commerce arbitration panel. The satellite company filed a suit in the U.S. to collect those damages, but the Ninth Circuit ruled that Devas didn’t meet a minimum contact standard to give the court jurisdiction over the appeal.

The justices seemed to agree that the minimum contact test was incorrect, but there was little interest across the bench to decide the more complex constitutional questions beyond that procedural bar.

“Why isn’t the right thing to do is just to say everybody agrees that the Ninth Circuit was wrong, we toss it back to the Ninth Circuit for everything else?” Justice Elena Kagan, a Barack Obama appointee, said.

Kagan noted that advocates in both cases were forced to back away from outlier arguments to appease the justices’ interest in more straightforward outcomes.

“We seem to have a lot of people giving up on things — properly so, because we seem to have a lot of outlier positions today,” Kagan said. “And if it’s an outlier position, why don’t we just say the outlier position is wrong, go back and try it again?”

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