Righteous 11rh Circuit Court of Appeals ruling against those bloodthirsty murders in the Royal Kingdom of Saudi Arabia, who supported 9/11 terrorists, assassinated and dismembered journalist Jamal Khashoggi and helped create OPEC. From Florida Phoenix:
11th Circuit reinstates claim against Saudi Arabia in NAS Pensacola mass shootings
Cites evidence ‘the Kingdom committed grossly negligent acts of commission rather than omission.’
Gov. Ron DeSantis confers with base officials following a mass shooting at Naval Air Station Pensacola on Dec. 6, 2019. (Photo via Governor’s Office)
A federal appeals court has reinstated a portion of a lawsuit filed against Saudi Arabia by survivors of servicemembers killed by a Saudi Air Force pilot training at the Pensacola Naval Air Station in 2019.
A federal trial judge had dismissed claims under numerous causes of action as precluded by the federal Foreign Sovereign Immunity Act.
However, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled Monday that another law — the Justice Against Sponsors of Terrorism Act — would allow claims that the Saudi government failed to properly vet the accused shooter, Mohammed Saeed Al-Shamrani, despite extensive evidence he was affiliated with al-Qaida and adhered to extremist views.
The court rejected claims including that the Saudi government failed to properly supervise Al-Shamran or that his allegedly intentional crime fell under an exemption to that government’s sovereign immunity. The government wasn’t liable for alleged acts of omission in screening Al-Shamrani, the opinion says.
However, “The Amended Complaint sufficiently alleges that the Kingdom committed grossly negligent acts of commission rather than omission,” the court said.
Furthermore, in clearing Al-Shamrani to attended training at the NAS, the government cited “false information that was knowingly submitted by the Kingdom of Saudi Arabia to the United States,” the court continued.
“Second, the Amended Complaint asserts that on multiple occasions, Saudi Arabia conducted security screenings for Al Shamrani — deliberate and affirmative acts of will or exertion designed to accomplish an objective” of enrolling him in the training program.
“Third, Saudi Arabia nominated Al-Shamrani for, and awarded him, a scholarship which enabled him to go to Texas to learn English from August 2017 until May 2018, and then to participate in the flight training program at NAS Pensacola from May of 2018 until the time of the attack on December 6, 2019,” the court said.
‘Deliberate steps’
“These were all affirmative acts, deliberate steps undertaken by the Kingdom, not acts of omission. These acts enabled Al-Shamrani to enter and live at the military bases in San Antonio, Texas and then at NAS Pensacola. Finally, the Kingdom was responsible for the affirmative act of sending Al-Shamrani to the United States.”
Circuit Judge Stanley Marcus wrote the opinion for his colleagues Jill Pryor and Britt Grant. The ruling sends the case back to the trial court in the Northern District of Florida.
The shootings ended in the deaths of Airman Mohammed Sameh Haitham, Ensign Joshua Kaleb Watson, and Airman Apprentice Cameron Scott Walters. Six other servicemembers and seven Escambia County Sheriff’s deputies were wounded.
Court records include evidence Al-Shamrani was affiliated with al-Qaida and advocated for:
- “The killing of Shia Muslims, non-Muslims and people who do not pray;
- “The unfounded conspiracy that the Shia sect of Islam was founded by Jews to divide Muslims;
- That Christians and Jews are the enemy of Islam, particularly to the Sunnis; and
- “That Islam is under attack and threatened by Christians, Jews and Western culture.”
“Al-Shamrani also echoed the radical and violent teachings of Anwar al-Awlaki, a Yemeni-American cleric and member of AQAP [al-Qaida in the Arabian Peninsula] who was described as ‘perhaps the most prolific jihadist ideologue of all time,” the court said.
“Despite the repeated public expression of extremist and violent views, Al-Shamrani was one of two students in his RSAF class of hundreds awarded a scholarship to enter a joint military program in the United States,” it continued.
“Taking the allegations presented in the Amended Complaint as true (as we must at this stage in the proceedings), we are satisfied that under the terms of the congressional enactment in JASTA, this bundle of claims falls within one of the exceptions to foreign sovereign immunity,” the court wrote.
“These claims are facially sufficient because they are based on a series of acts of commission (rather than acts of omission) taken by the Kingdom in hiring and vetting Al-Shamrani that rose to the level of gross negligence under Florida law.”
NAS Pensacola is home to the Naval Aviation Schools Command, which provides flight training to U.S. personnel plus members of allied armed forces. Al-Shamrani’s supervisors reportedly were unaware that he’d purchased the Glock-45 handgun he used in the shootings.
Following the shootings, Gov. Ron DeSantis said he expected the Saudi government to pay.
“I think there’s obviously going to be a lot of questions about this individual being a foreign national, being a part of the Saudi air force, and then to be here training on our soil to do this,” the governor said during a news conference at the base.
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USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 1 of 71
FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-11310
____________________
BENJAMIN WATSON, JR.,
Individually and as executor of the estate of
Joshua Kaleb Watson,
SHEILA WILEMON WATSON,
SHANE WALTERS,
Individually and as co-executor of the estate
of Cameron Scott Walters and as
representative of SLW a minor child,
AMANDA WALTERS,
Individually and as co-executor of the estate
of Cameron Scott Walters and as
representative of LNW a minor child,
S L W,
A Minor Child, et al.,
Plaintiffs-Appellants,
versus
KINGDOM OF SAUDI ARABIA,
Defendant-Appellee.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 2 of 71
2 Opinion of the Court 24-11310
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:21-cv-00329-MCR-ZCB
____________________
Before JILL PRYOR, GRANT, and MARCUS, Circuit Judges.
MARCUS, Circuit Judge:
This violent and tragic case arose out of a shooting rampage
involving Royal Saudi Air Force (“RSAF”) Second Lieutenant Mo-
hammed Saeed Al-Shamrani, who opened fire with a Glock 45 9-
millimeter pistol at Pensacola Naval Air Station (“NAS Pensacola”)
on December 6, 2019. The shooting resulted in the deaths of U.S.
Military Officer Joshua Kaleb Watson and Airman Apprentices
Cameron Scott Walters and Mohammed Sameh Haitham and seri-
ous injuries sustained by Ensigns Breanna Thomas and Kristy
Lehmer, Airmen George Johnson and Ryan Blackwell, Yeoman
First Class Jessica Pickett, Department of Defense Officer Captain
Charles Hogue, and Escambia County Sheriff’s Deputies Matthew
Tinch, Jonathan Glass, Michael Hoyland, Thomas C. Bortner,
Grant Lopez, Matthew Housam, and Matthew Keebler.
The survivors and the victims’ families sued the Kingdom of
Saudi Arabia in the Northern District of Florida, alleging a variety
of tort and contract claims. Soon thereafter, the Kingdom moved
the district court to dismiss the entire Amended Complaint, argu-
ing that it was both facially and factually insufficient to sustain ju-
risdiction in an American court. The Kingdom asserted that each
of the claims laid out in 172 pages was barred by the ForeignUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 3 of 71
24-11310 Opinion of the Court 3
Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605, and that the
Plaintiffs had not been able to overcome the Kingdom’s sovereign
immunity.
The district court agreed with Saudi Arabia, concluding that
the jurisdictional allegations were facially insufficient to sustain any
of the claims. The district court did not address the Kingdom’s ar-
gument that the jurisdictional claims were also insufficient as a
matter of fact. Finally, the trial court denied the Plaintiffs’ Request
for Jurisdictional Discovery.
After thorough review, and with the benefit of extensive
oral argument from able counsel, we agree that most of the Plain-
tiffs’ claims were properly dismissed for lack of subject matter ju-
risdiction pursuant to the Foreign Sovereign Immunities Act, and
the Justice Against Sponsors of Terrorism Act (“JASTA”), 28 U.S.C.
§ 1605B. However, one group or bundle of the Plaintiffs’ claims --
those based on the theory that the Kingdom had been grossly neg-
ligent in vetting, hiring, and sending Airman Al-Shamrani to the
United States -- is facially sufficient to survive the jurisdictional at-
tack. Taking the allegations presented in the Amended Complaint
as true (as we must at this stage in the proceedings), we are satisfied
that under the terms of the congressional enactment in JASTA, this
bundle of claims falls within one of the exceptions to foreign sov-
ereign immunity. These claims are facially sufficient because they
are based on a series of acts of commission (rather than acts of
omission) taken by the Kingdom in hiring and vetting Al-Shamrani
that rose to the level of gross negligence under Florida law.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 4 of 71
4 Opinion of the Court 24-11310
The Plaintiffs’ other claims, however, which can be grouped
under five broad theories of liability, fail to sufficiently meet any of
the exceptions to foreign sovereign immunity found in the FSIA or
JASTA. These claims fail either because they fall within discretion-
ary functions that are immune from suit; they are based on acts of
omission; they are based on tortious acts committed by Al-
Shamrani that did not fall within the scope of his employment; they
did not proximately cause the Plaintiffs’ injuries; or, finally, they do
not establish a prima facie breach of contract claim.
Accordingly, we affirm in part, reverse in part, and remand
the case to the district court for further proceedings, including, in
the first instance, answering the other jurisdictional question raised
by the Kingdom: whether the first bundle of claims arising out of
the Kingdom’s conduct in hiring, vetting, and sending its airman to
the United States survives the factual challenges.
I. Factual Background and Procedural History
At the outset, we recount in some detail the allegations
found in the Amended Complaint in order to determine whether,
for jurisdictional purposes, they are facially sufficient. We are re-
quired to accept the factual allegations as true when we address
whether a Complaint is facially sufficient to answer a jurisdictional
challenge under Rule 12(b)(1) of the Federal Rules of Civil Proce-
dure. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (per
curiam).USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 5 of 71
24-11310 Opinion of the Court 5
The Plaintiffs assert that Saudi Arabia is the largest foreign
military sales customer of the United States, having agreed to pur-
chase at least $350 billion in military contracts over a number of
years. A significant part of the arms trade agreements between the
United States and the Kingdom includes the obligation to train
Saudi Arabian military personnel on American military bases. The
training is funded by Saudi Arabia and is a critical component and
condition of the Kingdom’s purchase of aircraft, vessels, military
equipment, and weapons systems from the United States.
The Amended Complaint identifies one U.S. military educa-
tion and training program for international personnel, conducted
by the U.S. Department of Defense -- the Security Cooperation Ed-
ucation and Training Program (“SCETP”). As part of the sales
agreement with Saudi Arabia, the United States trains members of
the Royal Saudi Air Force. The commercial transactions with Saudi
Arabia use, among other documents, Letters of Offer and Ac-
ceptance (“LOA”), which are government-to-government agree-
ments expressly governed by and subject to U.S. law and regulation
that contain standard contractual Terms and Conditions, including
an indemnification provision.
The foreign state is also required to follow policies and pro-
cedures designed to ensure the safety of the United States and its
citizens. These include implementing and carrying out various se-
curity screening and vetting protocols before program participants
can receive an Invitational Travel Order and a visa to come to the
United States.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 6 of 71
6 Opinion of the Court 24-11310
The Amended Complaint tells us that the shooter, Moham-
med Saeed Al-Shamrani, was a Second Lieutenant in the RSAF and
a member of al Qaeda in the Arabian Peninsula (“AQAP”). He was
also a citizen, resident, employee, and agent of the Kingdom of
Saudi Arabia. In 2012, Al-Shamrani became active on Twitter, us-
ing an account that bore his first and last name and that was easily
traceable to him. By 2015, Al-Shamrani allegedly was following re-
ligious extremist and hardline clerics on Twitter, and his Twitter
account showed evidence of radicalization and the expression of
violent anti-American sentiments. Al-Shamrani also allegedly con-
tacted operatives from AQAP by this time.
In 2015, Al-Shamrani joined the Royal Saudi Air Force. De-
spite his radicalization and the expression of many anti-American
views, he was allowed to enroll in the RSAF Academy. The
Amended Complaint further alleges that while he was employed
by the RSAF, Al-Shamrani regularly posted radical fundamentalist
ideology, as well as anti-American and anti-Jewish ideology, on his
social media accounts. He commented on and encouraged others
to post radical Islamic sentiments on social media, and allegedly he
was followed on social media by other Saudi Arabian citizens in the
government and in the RSAF , who read and commented on Al-
Shamrani’s radical posts. Among the ideas he was alleged to have
expressed or read, the Amended Complaint includes the following:
The killing of Shia Muslims, non-Muslims and people
who do not pray;USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 7 of 71
24-11310 Opinion of the Court 7
The unfounded conspiracy that the Shia sect of Islam
was founded by Jews to divide Muslims;
That Christians and Jews are the enemy of Islam, par-
ticularly to the Sunnis; and
That Islam is under attack and threatened by Chris-
tians, Jews and Western culture.
Al-Shamrani also echoed the radical and violent teachings of
Anwar al-Awlaki, a Yemeni-American cleric and member of AQAP
who was described as “perhaps the most prolific jihadist ideologue
of all time.” Despite the repeated public expression of extremist
and violent views, Al-Shamrani was one of two students in his
RSAF class of hundreds awarded a scholarship to enter a joint mil-
itary program in the United States.
The Amended Complaint further asserts that military per-
sonnel coming to the United States for education or training at any
armed forces training facility, like Al-Shamrani, are classified as for-
eign government officials and require an A-2 visa, for which appli-
cants must undergo screening and complete a Form DS-160 Online
Nonimmigrant Visa Application. As for the screening, Saudi secu-
rity forces were required to thoroughly probe Al-Shamrani’s back-
ground, before and after his name was sent to Saudi Arabia’s De-
fense Ministry , because he was a prospective trainee in an American
flight program. In May 2017, Saudi Arabia allegedly represented to
the United States that Al-Shamrani had cleared the requisite secu-
rity, medical, and internal character vetting.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 8 of 71
8 Opinion of the Court 24-11310
As for the Form DS-160, we are told that the form includes
entries on personal details, travel, companions, contact infor-
mation, passport details, family, work, education, training, security,
and background. Notably, the security portion contains 55 ques-
tions pertaining to such areas as terrorism, espionage, illegal activ-
ity, immigration violations, and felony convictions. The Kingdom,
on Al-Shamrani’s behalf, sent the completed Form DS-160 to the
United States. Allegedly, it contained false information, which the
Plaintiffs say Saudi Arabia knew or should have known was false.
By August 2017, the visa application process was finished and Al-
Shamrani was issued his Invitational Travel Orders.
The Kingdom sent Al-Shamrani to the United States shortly
thereafter. The Saudi government paid for him first to learn Eng-
lish at Lackland Air Force Base in San Antonio, Texas, where he
spent almost a year. Then, in May 2018, Al-Shamrani was trans-
ferred to NAS Pensacola in Florida to begin flight training.
Throughout 2019, Al-Shamrani continued his flight training in Pen-
sacola as a student participating in the United States’ Security Co-
operation Education and Training Program.
In July 2019, Al-Shamrani allegedly sought and obtained a
Florida state hunting license, which he used to purchase a Glock 45
9-millimeter pistol and hundreds of rounds of ammunition. These
purchases violated the Kingdom’s policies and procedures, which
forbade international military students from owning firearms.
Nevertheless, Al-Shamrani stored the pistol and ammunition in the
RSAF officer barracks at NAS Pensacola. The Amended ComplaintUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 9 of 71
24-11310 Opinion of the Court 9
further says that he carried the Glock pistol and ammunition in his
pilot helmet bag between July 2019 and December 6, 2019, the day
of the attack.
On September 11, 2019, eighteen years after the attacks on
the World Trade Center and the Pentagon, according to the
Amended Complaint, Al-Shamrani posted an ominous message on
Twitter, proclaiming “the countdown has begun.” Later that
month, Al-Shamrani wrote out a will on his phone, which pur-
ported to explain his forthcoming attack; allegedly he sent a copy
of his will to al-Qaeda in the Arabian Peninsula.
During some of the time Al-Shamrani was stationed at NAS
Pensacola, a Saudi Country Liaison Officer (“CLO”) was also as-
signed to that base. The Amended Complaint alleges that the CLO
was responsible for assisting in administering RSAF students on
base, including Al-Shamrani. But in June 2019, both the CLO and
the deputy CLO left the base. The CLO returned to NAS Pensacola
on August 19, but he departed for Saudi Arabia only ten days later,
on August 29. Finally, the CLO returned to Pensacola on Septem-
ber 16, but he did not go to the base or report to his office. Instead,
the CLO requested that all official correspondence be forwarded to
a hotel in Orlando, Florida. The CLO returned to Saudi Arabia five
days later, on September 21, 2019. No Saudi CLO was stationed at
NAS Pensacola from September 21, 2019 until January 2020, long
after the shooting had occurred.
On the fateful morning of December 6, 2019, the Amended
Complaint alleges that Al-Shamrani tweeted a series of messagesUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 10 of 71
10 Opinion of the Court 24-11310
on his Twitter account. We produce them, with typos, in their en-
tirety:
I’m not against you for just being American, I don’t
hate you because your freedoms, I hate you because
every day you supporting, funding and committing
crimes not only against Muslims but also humanity. I
am against evil, and America as a whole has turned
into a nation of evil. What I see from America is the
supporting of Israel which is invasion of Muslim
countries, I see invasion of many countries by its
troops, I see Guantanamo Bay. I see cruise missiles,
cluster bombs and UAV.
Your decision-makers, the politicians, the lobbyists
and the major corporations are the ones gaining from
your foreign policy, and you are the ones paying the
price for it. What benefit is it to the American people
to suffer for the sake of supporting Israel? Do you
expect to transgress against others and yet be spared
retribution? How many more body-bags are Ameri-
can families willing to receive? For how long can the
US survive this war of attrition? The US Treasury
spend billions of dollars, in order to give Americans a
false sense of security.
The security is shared destiny. You will not be safe
until we live it as reality in [Palestine], and American
troops get out of our lands.
Shortly after, at approximately 6:42 a.m., Al-Shamrani en-
tered Building 633 on the Pensacola Naval Air Station wearing hisUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 11 of 71
24-11310 Opinion of the Court 11
RSAF uniform. The Amended Complaint says that he went from
room to room, firing hundreds of rounds of ammunition from his
Glock pistol at personnel throughout the building. He shot and
killed U.S. Military Officer Joshua Kaleb Watson and Airman Ap-
prentices Cameron Scott Walters and Mohammed Sameh
Haitham, and he shot and seriously injured Ensigns Breanna
Thomas and Kristy Lehmer, Airmen George Johnson and Ryan
Blackwell, Yeoman First Class Jessica Pickett, Department of De-
fense Officer Captain Charles Hogue, and Escambia County Sher-
iff’s Deputies Matthew Tinch, Jonathan Glass, Michael Hoyland,
Thomas C. Bortner, Grant Lopez, Matthew Housam, and Mat-
thew Keebler. Al-Shamrani was killed by law enforcement officers
during the shootout.
The Amended Complaint also asserts that a subsequent FBI
investigation of the shooting revealed that Al-Shamrani had com-
municated frequently with AQAP , and characterized the shooting
as an act of terrorism motivated by jihadist ideology. The investi-
gation also revealed that seventeen other Saudi trainees had social
media accounts linked to anti-American or jihadi content, and that
in total, twenty-one other Saudi trainees possessed “derogatory
material” in violation of U.S. and Saudi military law. As a result,
these twenty-one trainees were terminated from the program and
sent back to Saudi Arabia within days of the attack.
On February 2, 2020, AQAP posted a video claiming respon-
sibility for the attack. The Amended Complaint also says that
AQAP’s video contained content that could only have beenUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 12 of 71
12 Opinion of the Court 24-11310
provided by Al-Shamrani, such as pictures of Al-Shamrani, details
about physical testing Al-Shamrani underwent during his training,
and a copy of Al-Shamrani’s will.
The Amended Complaint states that the FBI announced on
May 18, 2020 that it had successfully unlocked Al-Shamrani’s iPh-
one, which revealed that he had been radicalized years before join-
ing the RSAF and that he was in direct communication with AQAP
up until the evening before the attack.
On February 22, 2021, the Plaintiffs filed their first Com-
plaint in the Northern District of Florida. The operative Amended
Complaint, which spans 172 pages and includes 601 numbered par-
agraphs, asserts nineteen counts sounding in tort and contract
against the Kingdom of Saudi Arabia. Although the Plaintiffs
raised nineteen often overlapping causes of action, for analytical
purposes and conceptual convenience, we have broken them down
into six discrete groupings, since the Amended Complaint articu-
lates six broad theories of liability.1
1 In OBB Personenverkehr AG v. Sachs, 577 U.S. 27 (2015), the Supreme Court,
when it determined whether the plaintiffs’ claims fell within an exception to
foreign sovereign immunity, similarly analyzed multiple and sometimes over-
lapping claims together when those claims arose from the same underlying
events. See id. at 30, 35 (“[T]he conduct constituting the gravamen of Sachs’s
suit plainly occurred abroad. All of her claims turn on the same tragic episode
in Austria, allegedly caused by wrongful conduct and dangerous conditions in
Austria, which led to injuries suffered in Austria.”); see also id. at 36 n.2 (“[W]e
consider here only a case in which the gravamen of each claim is found in the
same place.”).USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 13 of 71
24-11310 Opinion of the Court 13
These theories of liability are:
(1) negligence, gross negligence, and negligent infliction of
emotional distress arising under Florida law in connec-
tion with the Kingdom’s conduct in vetting, hiring, and
sending Al-Shamrani to the United States for flight train-
ing (Counts 1, 14–18) (respondeat superior, negligence
and gross negligence, negligent infliction of emotional
distress, Florida wrongful death statute, Florida survival
action, loss of consortium);
(2) negligence, gross negligence, and negligent infliction of
emotional distress arising under Florida law because the
Kingdom failed to properly vet Al-Shamrani once he
commenced training in the United States, in particular
that it failed to monitor his online activities (Counts 1,
14–18) (respondeat superior, negligence and gross negli-
gence, negligent infliction of emotional distress, Florida
wrongful death statute, Florida survival action, loss of
consortium);
(3) negligence, gross negligence, and negligent infliction of
emotional distress arising under Florida law because the
Saudi Country Liaison Officer failed to properly super-
vise Al-Shamrani when he was training in the United
States (Counts 1, 14–18) (respondeat superior, negligence
and gross negligence, negligent infliction of emotional
distress, Florida wrongful death statute, Florida survival
action, loss of consortium);USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 14 of 71
14 Opinion of the Court 24-11310
(4) vicarious liability imputed to the Kingdom of Saudi Ara-
bia under Florida law for the intentional torts committed
by Al-Shamrani (Counts 1, 8–13, 16, 18) (respondeat su-
perior, assault, battery, false imprisonment, intentional
infliction of emotional distress, Florida hate crimes stat-
ute, Florida civil remedy for terrorism, Florida wrongful
death statute, loss of consortium);
(5) support of terrorism, under the Anti-Terrorism Act
(“ATA”) (Counts 2–6 (harboring or concealing terrorists,
providing material support to terrorists, providing mate-
rial support to designated foreign terrorist organizations,
prohibited financing of terrorism, and aiding and abet-
ting acts of international terrorism)); and Florida law
(Counts 1, 7, 16 (respondeat superior, loss of solatium,
wrongful death statute)); and, finally
(6) breach of a written and oral contract between the Saudi
and American governments, listing the Plaintiffs as third-
party beneficiaries (Counts 1, 19) (respondeat superior,
breach of contract).
The Plaintiffs moved for jurisdictional discovery on August
5, 2022; the Kingdom, in turn, urged the district court to dismiss
the Amended Complaint in its entirety for lack of jurisdiction on
August 26, 2022. Both Motions were referred to a magistrate judge
for a Report and Recommendation (“R&R”). On May 11, 2023, the
magistrate judge filed his R&R, recommending that the Motion for
Jurisdictional Discovery be denied and that the Motion to Dismiss
be granted in full. The Plaintiffs filed their objections to the R&R.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 15 of 71
24-11310 Opinion of the Court 15
The district court invited the United States to file a state-
ment of interest, but the United States filed a Notice of Non-Par-
ticipation, declining the court’s invitation.
On March 30, 2024, the district court issued its opinion
adopting much of the R&R, ultimately granting the Kingdom’s
Motion to Dismiss the Plaintiffs’ Amended Complaint in its en-
tirety. The district court also denied the Plaintiffs’ Motion for Juris-
dictional Discovery. The court observed that “as to each FSIA ex-
ception, the Magistrate Judge first determined that Plaintiffs’ alle-
gations were inadequate or conclusory and thus the suit does not
withstand a facial, let alone factual, challenge. The undersigned
agrees.” The district court opinion continued:
While Plaintiffs take issue with the Magistrate Judge’s
application of the burden of production [as to the fac-
tual challenge], the Court finds it unnecessary to ad-
dress the debate because, even accepting the noncon-
clusory allegations in the Amended Complaint as
true, the jurisdictional allegations are facially insuffi-
cient to support the asserted statutory exceptions and
overcome presumptive immunity as a matter of law.
The court did not consider the Kingdom’s factual challenges to ju-
risdiction, since it concluded that the Amended Complaint was fa-
cially insufficient.
The district court explained that the Plaintiffs failed to estab-
lish an exception to foreign sovereign immunity. As for the excep-
tion found in JASTA, the trial court determined that Al-Shamrani
acted outside the scope of his employment because he was hiredUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 16 of 71
16 Opinion of the Court 24-11310
to fly airplanes, not engage in an attack at the naval air base in Pen-
sacola. Moreover, the court concluded that Al-Shamrani had
“acted for his own interests, not those of Saudi Arabia.”
As for the claims that the Kingdom had inadequately hired,
vetted, retained, and supervised Al-Shamrani, the trial court found
that each was an act of omission falling outside the scope of JASTA.
As for the Plaintiffs’ claims that the Kingdom supported terrorism,
also based on JASTA, the court concluded that the Amended Com-
plaint failed to sufficiently allege that Saudi Arabia’s actions, pur-
portedly in support of AQAP in Yemen, proximately caused the
shooting in the United States. As for the non-commercial tort ex-
ception to foreign sovereign immunity found in the FSIA, it deter-
mined that the Plaintiffs’ claims concerning the hiring, retention,
and supervision of Saudi employees were discretionary acts falling
outside the scope of the exception. Moreover, the district court
observed that the Plaintiffs had not identified any regulation or pol-
icy manual imposing a mandatory obligation on Saudi Arabia con-
cerning the supervision of its employees while they were being
trained in the United States. Finally, the district court rejected the
Plaintiffs’ argument that the waiver exception to the FSIA applied.
The trial court determined that no clear waiver could be found in
the standard form LOA.
This timely appeal followed. In this Court, the Plaintiffs as-
sert that their allegations are facially sufficient under the waiver and
non-commercial tort exceptions found in the FSIA, and, inde-
pendently, that the allegations are facially sufficient pursuant to theUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 17 of 71
24-11310 Opinion of the Court 17
exception to foreign sovereign immunity found in JASTA. The
Plaintiffs have not argued that the allegations were factually suffi-
cient too. Nor has the Kingdom addressed factual sufficiency for
jurisdictional purposes, because the district court had no occasion
to address that question. Accordingly, we only address whether the
Amended Complaint is facially sufficient for jurisdictional pur-
poses.
Our discussion first explores the text and history surround-
ing the FSIA and JASTA, and then addresses the facial sufficiency
of each grouping of claims the Plaintiffs have levelled against the
Kingdom.
II. Statutory Background
The Foreign Sovereign Immunities Act “regulates subject
matter jurisdiction and provides the only basis for courts in this
country to acquire jurisdiction over a foreign state.” Calzadilla v.
Banco Latino Internacional, 413 F.3d 1285, 1286 (11th Cir. 2005)
(quoting Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d
1279, 1290 (11th Cir. 1999)). The FSIA “provides that a foreign state
is immune from the jurisdiction of the United States unless an FSIA
statutory exemption is applicable.” Id. (quoting Aquamar, 179 F.3d
at 1290). When the FSIA is invoked, courts generally consider
whether foreign sovereign immunity applies on a claim-by-claim
basis. See, e.g., Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993)
(“[U]nless a specified exception [to the FSIA] applies, a federal court
lacks subject-matter jurisdiction over a claim against a foreign
state.” (emphasis added)); Simon v. Republic of Hungary, 812 F.3dUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 18 of 71
18 Opinion of the Court 24-11310
127, 141 (D.C. Cir. 2016), abrogated on other grounds by Fed. Republic
of Germany v. Philipp, 592 U.S. 169 (2021); Abelesz v. Magyar Nemzeti
Bank, 692 F.3d 661, 697 (7th Cir. 2012); Siderman de Blake v. Republic
of Argentina, 965 F.2d 699, 706 (9th Cir. 1992).2
Thus, under the FSIA, although a foreign state, as a general
rule, has sovereign immunity from suit and therefore cannot be
haled into an American court, the FSIA provides for exceptions un-
der a variety of circumstances. The Plaintiffs invoke two of them:
waiver, found in subsection (a)(1), and the non-commercial tort ex-
ception, found in subsection (a)(5). They read this way:
2 In the past, this Court has sometimes conducted its FSIA analysis exception-
by-exception rather than claim-by-claim. See, e.g., Glob. Marine Expl., Inc. v.
Republic of France, 33 F.4th 1312, 1318 (11th Cir. 2022) (assessing whether the
“commercial activities” exception applied to France’s efforts to recover the
wreck of a sunken vessel); Architectural Ingenieria Siglo XXI, LLC v. Dominican
Republic, 788 F.3d 1329, 1338–43 (11th Cir. 2015) (same for the waiver and
commercial activity exceptions in relation to a breach of contract action). We
have never concluded that an exception-by-exception approach is somehow
required by the FSIA or mandated by our precedent. We join our sister cir-
cuits in affirming that it may often be wiser to proceed on a claim-by-claim
basis -- as is the case here. See Simon, 812 F.3d at 141; Abelesz, 692 F.3d at 697;
Siderman de Blake, 965 F.2d at 706. The Plaintiffs raise no fewer than nineteen
counts, sorted into six discrete theories of liability. See supra at pp. 13–15. Each
bundle of claims implicates the statutory exceptions found in the FSIA and in
JASTA in slightly different ways. In these circumstances, then, and for clarity
of analysis, we assess the sufficiency of each bundle of claims, rather than con-
ducting our analysis exception-by-exception.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 19 of 71
24-11310 Opinion of the Court 19
(a) A foreign state shall not be immune from the jurisdiction
of courts of the United States or of the States in any case
--
(1) in which the foreign state has waived its immunity ei-
ther explicitly or by implication, notwithstanding any
withdrawal of the waiver which the foreign state may
purport to effect except in accordance with the terms
of the waiver;
. . .
(5) not otherwise encompassed in paragraph (2) above,
in which money damages are sought against a foreign
state for personal injury or death, or damage to or loss
of property, occurring in the United States and caused
by the tortious act or omission of that foreign state or
of any official or employee of that foreign state while
acting within the scope of his office or employment;
except this paragraph shall not apply to --
(A) any claim based upon the exercise or per-
formance or the failure to exercise or per-
form a discretionary function regardless of
whether the discretion be abused, or
(B) any claim arising out of malicious prosecu-
tion, abuse of process, libel, slander, mis-
representation, deceit, or interference with
contract rights.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 20 of 71
20 Opinion of the Court 24-11310
28 U.S.C. § 1605(a).
The Plaintiffs invoke one additional statute -- the Justice
Against Sponsors of Terrorism Act -- which, they say, provides an
exception to foreign sovereign immunity and allows them to sue
the Kingdom in an American court to answer for the grievous harm
inflicted by Al-Shamrani’s shooting.
Congress enacted the Justice Against Sponsors of Terrorism
Act in 2016 over President Obama’s veto. This Act amended the
FSIA and provided an additional exception to foreign sovereign im-
munity. Justice Against Sponsors of Terrorism Act, Pub. L. No.
114-222, § 3(a), 130 Stat. 852, 853 (2016). Congress told us in the
text that its purpose in enacting JASTA was “to provide civil liti-
gants with the broadest possible basis, consistent with the Consti-
tution of the United States, to seek relief against persons, entities,
and foreign countries, wherever acting and wherever they may be
found, that have provided material support, directly or indirectly,
to foreign organizations or persons that engage in terrorist activi-
ties against the United States.” Id. § 2(b).
The exception to foreign sovereign immunity found in
JASTA reads this way:
(b) Responsibility of foreign states.--A foreign state shall
not be immune from the jurisdiction of the courts of the
United States in any case in which money damages are
sought against a foreign state for physical injury to per-
son or property or death occurring in the United States
and caused by --USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 21 of 71
24-11310 Opinion of the Court 21
(1) an act of international terrorism in the United States;
and
(2) a tortious act or acts of the foreign state, or of any
official, employee, or agent of that foreign state
while acting within the scope of his or her office, em-
ployment, or agency, regardless where the tortious
act or acts of the foreign state occurred.
. . .
(d) Rule of construction.--A foreign state shall not be sub-
ject to the jurisdiction of the courts of the United States
under subsection (b) on the basis of an omission or a tor-
tious act or acts that constitute mere negligence.
28 U.S.C § 1605B.
Thus, six distinct elements are required by JASTA: (1) money
damages are sought; (2) against a foreign state; (3) for physical in-
jury to person or property or death; (4) the injury or death occurred
in the United States; (5) the injury or death was caused by an act of
international terrorism in the United States; and (6) the injury or
death was caused by a tortious act or acts of the foreign state, or of
any official, employee, or agent of the foreign state while acting
within the scope of his employment.
III. Standard of Review
“We review de novo whether a defendant is entitled to im-
munity under the Foreign Sovereign Immunities Act.” R&R Int’lUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 22 of 71
22 Opinion of the Court 24-11310
Consulting LLC v. Banco do Brasil, S.A., 981 F.3d 1239, 1243 (11th Cir.
2020). Challenges to subject matter jurisdiction are brought under
Rule 12(b)(1). See Fed. R. Civ. P. 12(b)(1). An attack on subject mat-
ter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1)
comes in two forms -- facial or factual. Lawrence, 919 F.2d at 1528–
29. Facial attacks on the complaint “require[] the court merely to
look and see if [the] plaintiff has sufficiently alleged a basis of sub-
ject matter jurisdiction, and the allegations in his complaint are
taken as true for the purposes of the motion.” Id. at 1529 (altera-
tions in original) (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d
507, 511 (5th Cir. 1980)). “‘Factual attacks,’ on the other hand, chal-
lenge ‘the existence of subject matter jurisdiction in fact, irrespec-
tive of the pleadings, and matters outside the pleadings, such as tes-
timony and affidavits, are considered.’” Id. (quoting Menchaca, 613
F.2d at 511).
“A plaintiff defending against a facial attack on jurisdiction
enjoys ‘safeguards similar to those retained when a Rule 12(b)(6)
motion to dismiss for failure to state a claim is raised,’ and both the
district court and a reviewing court ‘must consider the [well-
pleaded] allegations in the plaintiff’s complaint as true.’” Mulhall v.
Unite Here Local 355, 618 F.3d 1279, 1286 n.8 (11th Cir. 2010) (quot-
ing McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d
1244, 1251 (11th Cir. 2007)). To defeat a motion to dismiss under
Rule 12(b)(6), the complaint must allege enough facts to state a
plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
It is by now hornbook law that a claim is plausible when the facts
pleaded allow “the court to draw the reasonable inference that theUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 23 of 71
24-11310 Opinion of the Court 23
defendant is liable for the misconduct alleged.” Id. Legal conclu-
sions or conclusory statements will not suffice. Id. That said, the
pleading requirements for a complaint generally are less demand-
ing than those for claims alleging fraud. Id. at 686–87.
Finally, we review a district court’s “denial, grant, or limita-
tion of a motion for discovery,” including motions for jurisdictional
discovery, “for abuse of discretion.” United Techs. Corp. v. Mazer, 556
F.3d 1260, 1280–81 (11th Cir. 2009) (quoting Lowery v. Ala. Power Co.,
483 F.3d 1184, 1218 n.76 (11th Cir. 2007)).
IV. Analysis
A. The Plaintiffs have presented a facially sufficient juris-
dictional claim for grossly negligent vetting and hir-
ing.
Under Florida law, for jurisdictional purposes, the Plaintiffs
have sufficiently stated a claim for gross negligence in connection
with Saudi Arabia’s failure to properly vet Al-Shamrani. Accepting
the factual allegations in the Amended Complaint as true (as we
must), there is no dispute that the first five elements of JASTA have
been met. First, the Plaintiffs are seeking money damages in the
Amended Complaint. Second, the Plaintiffs are seeking damages
against the Kingdom of Saudi Arabia, a foreign state. Third, the
Plaintiffs are suing on account of physical injury and death. Fourth,
the injuries and the deaths occurred at NAS Pensacola, which is in
Florida and thus in the United States. Fifth, the Plaintiffs’ injuries
or deaths were caused by an act of international terrorism.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 24 of 71
24 Opinion of the Court 24-11310
The only open question is whether the Plaintiffs have suffi-
ciently pled and met the final requirement found in JASTA -- that
the Plaintiffs’ injuries were caused by a tortious act of the Kingdom
of Saudi Arabia, or by its employees acting within the scope of their
employment. Before we can address the question, however, we
face a threshold interpretive issue about the meaning of the phrase
“mere negligence” found in JASTA. Again, the text of JASTA reads
this way:
A foreign state shall not be subject to the jurisdiction
of the courts of the United States under subsection
(b) on the basis of an omission or a tortious act or acts
that constitute mere negligence.
28 U.S.C. § 1605B(d).
If the phrase “mere negligence” means “all forms of negli-
gence, as opposed to intentional acts,” then tortious acts constitut-
ing both ordinary negligence and gross negligence would be ex-
cluded from the JASTA exception, in which case the Plaintiffs
would have failed to sufficiently plead an exception to the King-
dom’s sovereign immunity . On the other hand, if the phrase “mere
negligence” refers to “ordinary negligence, as opposed to gross
negligence,” then only ordinary negligence would be excluded
from the JASTA exception, meaning that the Plaintiffs could sue
under JASTA for claims of gross negligence.
In our view, the better reading of the phrase “mere negli-
gence” is that it refers only to ordinary negligence, which stands in
contrast to gross negligence. In other circumstances, this CourtUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 25 of 71
24-11310 Opinion of the Court 25
has similarly contrasted the phrase “mere negligence” with gross
negligence and found the term “mere negligence” to be synony-
mous with ordinary negligence and no more. Thus, for example,
in McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999), we contrasted
deliberate indifference claims based on “grossly inadequate” ac-
tions with those based on “mere negligence.” Id. at 1259 (quoting
Howell v. Evans, 922 F.2d 712, 722 (11th Cir. 1991)). Similarly, in Ow-
ens v. City of Atlanta, 780 F.2d 1564 (11th Cir. 1986), we observed
that the plaintiff was required to “demonstrate gross negligence or
deliberate indifference” for an excessive force claim and that “mere
negligence or delinquency [was] insufficient.
” Id. at 1567. Like-
wise, in Smith v. U.S. Attorney General, 983 F.3d 1206 (11th Cir. 2020),
we defined reckless conduct as “a gross deviation from what a rea-
sonable person would do” and as constituting “more than mere
negligence.” Id. at 1212 (quoting Reckless, Black’s Law Dictionary
(11th ed. 2019)). What’s more, generally, we use the word “mere”
when we want to emphasize how small, limited, or unimportant
something is. See, e.g., Mere, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/mere (last visited
Oct. 8, 2025) (“being nothing more than”).
This interpretation of the phrase “mere negligence” also
avoids turning the word “mere” into surplusage. As the Supreme
Court has repeatedly instructed us, “[i]t is our duty ‘to give effect,
if possible, to every clause and word of a statute.’” United States v.
Menasche, 348 U.S. 528, 538–39 (1955) (quoting Montclair v. Ramsdell,
107 U.S. 147, 152 (1882)); Setser v. United States, 566 U.S. 231, 239
(2012); Chickasaw Nation v. United States, 534 U.S. 84, 93 (2001);USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 26 of 71
26 Opinion of the Court 24-11310
Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). We are therefore
“reluctan[t] to treat statutory terms as surplusage.” Duncan v.
Walker, 533 U.S. 167, 174 (2001) (alteration in original) (quoting
Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S.
687, 698 (1995)). Reading the phrase “mere negligence” to include
“gross negligence” would render superfluous the modifier “mere,
”
since gross negligence is legally distinct from ordinary negligence.
Compare Negligence, Black’s Law Dictionary (10th ed. 2014) (“The fail-
ure to exercise the standard of care that a reasonably prudent per-
son would have exercised in a similar situation”), with Gross Negli-
gence, Black’s Law Dictionary (10th ed. 2014) (“[T]he omission of
even such diligence as habitually careless and inattentive people do
actually exercise in avoiding danger to their own person or prop-
erty.”).
3 By giving the word “mere” the meaning of “ordinary,” the
phrase “mere negligence” takes on a more specific meaning that
respects the words Congress chose to use in JASTA.
The disputed jurisdictional elements found in JASTA, then,
are whether the Plaintiffs have sufficiently alleged: (1) that Saudi
Arabia committed a tortious act, (2) that the theory of liability is
based on a tortious act or acts that constitute “mere negligence” or
3 When conducting statutory interpretation, we begin with the ordinary
meaning of the term at the time the provision was enacted. See Bostock v. Clay-
ton County, 140 S. Ct. 1731, 1750 (2020) (stating that “the law’s ordinary mean-
ing at the time of enactment usually governs”); Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 69 (2012) (“Words are to
be understood in their ordinary, everyday meanings . . . .”); id. at 78 (“Words
must be given the meaning they had when the text was adopted.”).USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 27 of 71
24-11310 Opinion of the Court 27
something more (here, gross negligence), (3) that Saudi Arabia’s
tortious acts caused the Plaintiffs’ injuries, and (4) that the King-
dom’s conduct involved acts of commission, not just acts of omis-
sion. The Plaintiffs’ Amended Complaint sufficiently alleges the
tortious act of negligent hiring; that the Kingdom’s conduct rose
to the level of gross negligence under Florida common law; that it
proximately caused the Plaintiffs’ injuries; and that the allegata in-
cluded numerous acts of commission.
1. The Amended Complaint sufficiently alleges that Saudi Ara-
bia committed the tort of negligent hiring under Florida law.
We start with what is easy. The Plaintiffs have sufficiently
alleged that the Kingdom was negligent under Florida law in vet-
ting, hiring, and dispatching Al-Shamrani to NAS Pensacola. The
FSIA states that “[a]s to any claim for relief with respect to which a
foreign state is not entitled to immunity . . . the foreign state shall
be liable in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 1606. Thus, the
Supreme Court has concluded that “where state law provides a rule
of liability governing private individuals, the FSIA requires the ap-
plication of that rule to foreign states in like circumstances.” First
Nat’l City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S.
611, 622 n.11 (1983), superseded on other grounds by statute, 28 U.S.C.
§ 1610(g), as recognized in Rubin v. Islamic Republic of Iran, 583 U.S.
202 (2018). We are therefore bound by Florida law. See, e.g., Cassirer
v. Thyssen-Bornemisza Collection Found., 142 S. Ct. 1502, 1508 (2022)
(stating that under the FSIA, the “substantive law applying to [aUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 28 of 71
28 Opinion of the Court 24-11310
private party] also applies to [a foreign state]”); cf. Flohr v. Mackovjak,
84 F.3d 386, 390 (11th Cir. 1996) (applying state-law definition of
“scope of employment” in sovereign immunity analysis under the
FTCA).
Under Florida common law, Saudi Arabia had a duty to in-
vestigate Al-Shamrani for security purposes and, if it learned that
Al-Shamrani posed some imminent danger or security risk, to take
action to bar him from entering flight training in the United States.
In Florida, a prima facie case for negligent hiring includes the fol-
lowing essential elements: “(1) the employer was required to make
an appropriate investigation of the employee and failed to do so;
(2) an appropriate investigation would have revealed the unsuitabil-
ity of the employee for the particular duty to be performed or for
employment in general; and (3) it was unreasonable for the em-
ployer to hire the employee in light of the information he knew or
should have known.” Malicki v. Doe, 814 So. 2d 347, 362 (Fla. 2002)
(quoting Garcia v. Duffy, 492 So. 2d 435, 440 (Fla. 2d DCA 1986)).
The core predicate is reasonable foreseeability. McCain v. Fla.
Power Corp., 593 So. 2d 500, 503 (Fla. 1992). Thus, the essential
question is “whether the specific danger that ultimately manifested
itself . . . reasonably could have been foreseen at the time of hiring.”
Malicki, 814 So. 2d at 362. “[C]entral to the task of judging the em-
ployer’s responsibility to investigate an employee’s background is
consideration of ‘the type of work to be done by the [prospective]
employee.’” Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744, 750
(Fla. 1st DCA 1991) (quoting Williams v. Feather Sound, Inc., 386 So.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 29 of 71
24-11310 Opinion of the Court 29
2d 1238, 1240 (Fla 2d DCA 1980)). Thus, for example, in Williams
v. Feather Sound, Inc., 386 So. 2d 1238 (Fla. 2d DCA 1980), the court
found that “[i]f an employer wishes to give an employee the indicia
of authority to enter into the living quarters of others, it has the
responsibility of first making some inquiry with respect to whether
it is safe to do so,” and because the employer in that case “made no
effort to contact prior employers, and . . . did not seek advice from
[the employee’s] references,” then summary judgment in favor of
the employer was unwarranted in light of the “suspect” parts of
the employee’s background. Id. at 1240–41 & n.9.
As for the first element of negligent hiring, the Plaintiffs suf-
ficiently allege that Saudi Arabia had a duty under Florida common
law to appropriately investigate Al-Shamrani’s background, and the
Kingdom failed to adequately conduct such an investigation. The
source of Saudi Arabia’s obligation is rooted in “the type of work
to be done by” Al-Shamrani. Harrison, 583 So. 2d at 750 (quoting
Williams, 386 So. 2d at 1240). Specifically, Al-Shamrani was sent by
the Saudis to the United States to learn how to fly American war-
planes that had been purchased by the Kingdom. Only because it
was integral to receiving flight training was Al-Shamrani author-
ized to enter a secure American military installation. Since Al-
Shamrani was a member of another nation’s military and had been
sent to the United States to receive training at a secure American
military facility, the Kingdom had “the responsibility of first mak-
ing some inquiry with respect to whether it [was] safe to do so.”
Williams, 386 So. 2d at 1240. Put differently, as alleged in the
Amended Complaint, “Saudi Arabia had a duty of reasonable careUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 30 of 71
30 Opinion of the Court 24-11310
in ensuring its training candidates were properly screened for secu-
rity threats, properly trained to recognize and report security
threats,” and “routinely monitored.”
The Amended Complaint further asserts that Saudi Arabia’s
duties stemmed from “the protocols, rules, regulations, codes of
conduct and standards of the U.S. Department of State, U.S. De-
partment of Defense, the RSAF, and the command-specific pro-
grams in which they participated, including the SCETP, FMS [For-
eign Military Sales], and IMET [International Military Education
and Training].” Finally, the Amended Complaint says that the For-
eign Military Student “Letters of Offer and Acceptance,” which are
“government-to-government agreement[s],” “require the foreign
state to follow strict policies and procedures designed to ensure the
safety of the United States and its citizens.” It was reasonably fore-
seeable that danger might arise from inadequately screening a
flight candidate and then affording him access to a secure American
military installation.
As for the second and third elements of negligent hiring,
those elements too are sufficiently pled for jurisdictional purposes.
The Amended Complaint asserts that the Kingdom had previously
investigated Al-Shamrani’s background “extensive[ly]” when he
joined the RSAF , and also subjected him to extensive vetting “be-
fore and after his name was put forward to the Kingdom’s Defense
Ministry” “[a]s a prospective trainee in an American flight pro-
gram.”USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 31 of 71
24-11310 Opinion of the Court 31
Moreover, the Amended Complaint contains detailed allega-
tions regarding Al-Shamrani’s long history of publicly expressing
extremist and violent views, even including the period of time be-
fore he joined the RSAF, when Al-Shamrani adhered to radical Is-
lamic ideology that promoted extremist views, violent jihad, and a
belief that nonbelievers, especially Americans, deserve to die. It
also specifically alleges that “Al-Shamrani was a follower of al-
Qaeda and AQAP clerics and other extremist ideologues.” The
Amended Complaint recounts that Al-Shamrani’s social media ac-
counts were available publicly and that by 2015, his Twitter account
showed evidence of radicalization and the expression of anti-Amer-
ican sentiments. It also alleges that prior to being sent to the United
States, Al-Shamrani’s Twitter account followed religious extremist
and hardline clerics. We are also told he used “his public social me-
dia pages to post and share extremist content, prior to the attacks”
at NAS Pensacola. Al-Shamrani “adopted . . . and expressly re-
peated” the following ideas: “[t]he killing of Shia Muslims, non-
Muslims and people who do not pray”; “[t]he unfounded conspir-
acy that the Shia sect of Islam was founded by Jews to divide Mus-
lims”; “[t]hat Christians and Jews are the enemy of Islam, particu-
larly to the Sunnis”; and “[t]hat Islam is under attack and threat-
ened by Christians, Jews and Western culture.”
The Amended Complaint also asserts that most of the state-
ments at issue preceded the time when Al-Shamrani came to the
United States, and this is the relevant timeframe for discerning
what information was available to the Kingdom when it screened
the airman for security before sending him to this country .USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 32 of 71
32 Opinion of the Court 24-11310
Although the Amended Complaint does not identify the exact
dates, it does answer the “when” question in some detail. It claims
that Al-Shamrani made violent jihadi statements from at least 2015
until when the Kingdom sent him to the United States on August
28, 2017.
In short, for jurisdictional purposes, the Amended Com-
plaint sufficiently alleges that Al-Shamrani held violent and extrem-
ist views, that he regularly posted these views on social media ac-
counts, and that he posted these views before the Kingdom sent
him to the United States.
The Amended Complaint further claims that even minimal
investigation, let alone an “appropriate investigation,” would have
readily “revealed the unsuitability” of selecting Al-Shamrani “for
the particular duty to be performed” -- coming to the United States
for flight training at the Pensacola Naval Air Station. Malicki, 814
So. 2d at 362 (quoting Garcia, 492 So. 2d at 438). The Amended
Complaint affords the reasonable inference that the Kingdom knew
or should have known that Al-Shamrani was a “ticking time bomb”
in light of the many violent and radical comments he made. Thus,
the Amended Complaint sufficiently alleges for jurisdictional pur-
poses that the Kingdom unreasonably vetted him, hired him, and
sent him to the United States.
2. The Amended Complaint sufficiently alleges that Saudi Ara-
bia’s negligent hiring of Al-Shamrani rose to the level of
gross negligence.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 33 of 71
24-11310 Opinion of the Court 33
The Plaintiffs also have sufficiently alleged that under Flor-
ida common law, the actions of the Kingdom in vetting and hiring
Al-Shamrani rose to the level of gross negligence.
We turn to Florida law for the meaning of gross negligence.
See, e.g., Cassirer, 142 S. Ct. at 1508 (stating that under the FSIA, the
“substantive law applying to [a private party] also applies to [a for-
eign state]”); cf. Flohr, 84 F.3d at 390 (applying state-law definition
of “scope of employment” in sovereign immunity analysis under
the FTCA). Gross negligence is defined as “that course of conduct
which a reasonable and prudent man would know would probably
and most likely result in injury to persons or property.” Carraway
v. Revell, 116 So. 2d 16, 22–23 (Fla. 1959) (quoting Bridges v. Speer, 79
So. 2d 679, 682 (Fla. 1955)). Gross negligence requires establishing
three things: (1) “circumstances constituting an imminent or clear
and present danger amounting to a more than normal or usual
peril,” (2) “knowledge or awareness of the imminent danger on the
part of the tortfeasor,” and (3) “an act or omission that evinces a
conscious disregard of the consequences.” Elec. Boat Corp. v. Fallen,
343 So. 3d 1218, 1220 (Fla. 5th DCA 2022) (quoting Moradiellos v.
Gerelco Traffic Controls, Inc., 176 So. 3d 329, 335 (Fla. 3d DCA 2015)).
The first element of an imminent or a clear and present dan-
ger is readily apparent. As we’ve previously observed, the
Amended Complaint contains numerous detailed allegations re-
garding Al-Shamrani’s publicly available extremist and violent
views, which amounted to “circumstances constituting an immi-
nent or clear and present danger amounting to a more than normalUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 34 of 71
34 Opinion of the Court 24-11310
or usual peril,” and “knowledge or awareness of the imminent dan-
ger on the part of ” Saudi Arabia. Elec. Boat Corp., 343 So. 3d at 1220
(quoting Moradiellos, 176 So. 3d at 335). It also charges that Al-
Shamrani’s identity and views online were not hidden: he “was not
taking similar steps to mask his identity [as another person, who
was operating anonymously online and whom Saudi authorities
subsequently de-masked] in his social media posts that made his
support for AQAP and his jihadist principles clear.” Although “Al-
Shamrani underwent extensive vetting when he joined the RSAF”
and “Saudi Arabia knew of Al-Shamrani’s radicalization and anti-
American sentiments,” “Al-Shamrani was allowed to enroll in the
RSAF Academy.”
“According to the FBI,” the Amended Complaint continues,
“Al-Shamrani’s social media posts echoed the teachings of [Anwar]
al-Awlaki,” who was a “Yemeni-American cleric” and was charac-
terized as being “[o]ne of AQAP’s most notorious members”; al-
Awlaki “became a prominent English-language propagandist for al-
Qaeda” and was “perhaps the most prolific jihadist ideologue of all
time,” “propagandiz[ing] through hundreds of hours of audio and
video lectures, along with written essays, blog posts and other con-
tent. Al-Awlaki’s videos and writings have continued to influence
countless extremists, including Al-Shamrani.”
The Amended Complaint thus includes numerous details
about Al-Shamrani’s extremist ideology and views and how, far
from being hidden, they were available on his publicly available so-
cial media accounts before he had even joined the RSAF andUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 35 of 71
24-11310 Opinion of the Court 35
throughout his time with the RSAF, before he came to the United
States. If there were any doubt as to whether there were “circum-
stances constituting an imminent or clear and present danger
amounting to a more than normal or usual peril,” Elec. Boat Corp.,
343 So. 3d at 1220 (quoting Moradiellos, 176 So. 3d at 335), those
doubts were resolved by the subsequent events, including Al-
Shamrani’s public tweet on September 11, 2019 proclaiming that
“the countdown has begun,” as well as the shooting itself on De-
cember 6, 2019 and Al-Shamrani’s accompanying screed.
Put differently, we understand the concept of risk to be the
product of the nature or gravity of the harm and the probability it
may arise. See, e.g., United States v. Carroll Towing Co., 159 F.2d 169,
173 (2d. Cir. 1947) (Learned Hand, J.). The profound nature of the
risk of sending Al-Shamrani for flight training in America
amounted to far “more than normal or usual peril.” Elec. Boat Corp.,
343 So. 3d at 1220 (quoting Moradiellos, 176 So. 3d at 335). A Saudi
Arabian military officer, who repeatedly urged death to America
and to its military apparatus, posed a clear and immediate danger
if assigned to a U.S. military base for extensive flight training.
The Amended Complaint further sufficiently alleges
“knowledge or awareness of the imminent danger on the part of ”
Saudi Arabia. Id. (quoting Moradiellos, 176 So. 3d at 335). Finally,
the Amended Complaint asserts that Saudi Arabia undertook mul-
tiple acts “that evince[d] a conscious disregard of the conse-
quences.” Id. (quoting Moradiellos, 176 So. 3d at 335). First, it per-
mitted him to initially enroll in the RSAF Academy. Next, Al-USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 36 of 71
36 Opinion of the Court 24-11310
Shamrani’s RSAF squadron commanders nominated him for the
foreign training program, and then he became one of only two stu-
dents, out of hundreds in his RSAF Academy class, selected by the
Kingdom and awarded a scholarship to enter the joint military pro-
gram in the United States. Saudi Arabia also asked the United
States for an A-2 visa for Al-Shamrani, and the visa was granted
based on allegedly false documentation submitted to the United
States. Finally, Saudi Arabia paid for Al-Shamrani to spend almost
a year learning English (from August 28, 2017 until May 2018) and
sent him to the United States in the first place.
For jurisdictional purposes, then, the Amended Complaint
sufficiently alleges gross negligence arising from the failure to
properly vet the airman before he was sent to Pensacola Naval Air
Station.
3. The allegations sufficiently allege proximate cause.
Next, for jurisdictional purposes, the Amended Complaint
sufficiently alleges that Saudi Arabia’s grossly negligent vetting and
hiring caused grievous injuries and multiple deaths.
Preliminarily, we are required to determine what the phrase
“caused by” means in JASTA. JASTA states that foreign sovereign
immunity is abrogated if there is:
physical injury to person or property or death occur-
ring in the United States and caused by . . . a tortious
act or acts of the foreign state, or of any official, em-
ployee, or agent of that foreign state while actingUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 37 of 71
24-11310 Opinion of the Court 37
within the scope of his or her office, employment, or
agency.
28 U.S.C. § 1605B(b). Although Saudi Arabia argues that the proper
reading of this phrase requires proximate causation in addition to
but-for causation -- “‘that the harm would not have occurred’ in the
absence of -- that is, but for -- the defendant’s conduct,” Burrage v.
United States, 571 U.S. 204, 211 (2014) (quoting Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 346–47 (2013)) -- the better reading is the
one that the magistrate judge and district judge offered: that
“caused by” requires only proximate causation. See In re Terrorist
Attacks on Sept. 11, 2001, 298 F. Supp. 3d 631, 645 (S.D.N.Y. 2018).
The Fourth Circuit has read the phrase “caused by” in connection
with a different FSIA exception, 28 U.S.C. § 1605A, to mean “prox-
imate cause.” Rux v. Republic of Sudan, 461 F.3d 461, 473 (4th Cir.
2006); see also Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376
F.3d 1123, 1128 (D.C. Cir. 2004); accord National Defense Authori-
zation Act for Fiscal Year 2008, Pub. L. No. 110-181, § 1083, 122 Stat.
3, 338–44 (2008).
Moreover, when the Supreme Court has interpreted the
phrase “caused by” in the admiralty jurisdiction setting, it con-
cluded that the same phrase means proximate causation. Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 536
(1995) (“The [Extension of Admiralty Jurisdiction] Act uses the
phrase ‘caused by,’ which more than one Court of Appeals has read
as requiring what tort law has traditionally called ‘proximate cau-
sation.’”). None of the authorities cited by Saudi Arabia supportsUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 38 of 71
38 Opinion of the Court 24-11310
the application of but-for causation here. See, e.g., Burrage, 571 U.S.
at 213–14 (interpreting similar phrases in criminal law context, such
as “because of,” “based on,” “by reason of,” “results in,” “as a result
of,” and “results from,” as requiring but-for causation, but never
interpreting the phrase “caused by”); Jerome B. Grubart, Inc., 513 U.S.
at 536 (stating that the phrase “caused by” requires proximate cau-
sation); U.S. Commodity Futures Trading Comm’n v. S. Tr. Metals, Inc.,
894 F.3d 1313, 1329 (11th Cir. 2018) (stating that establishing proxi-
mate cause requires more than reasonable foreseeability alone).
Indeed, generally we “assume Congress ‘is familiar with the
common-law rule [of proximate causation] and does not mean to
displace it sub silentio’ in federal causes of action.” Bank of Am. Corp.
v. City of Miami, 581 U.S. 189, 201 (2017) (quoting Lexmark Int’l, Inc.
v. Static Control Components, Inc., 572 U.S. 118, 132 (2014)); see also id.
(“[I]n all cases of loss, we are to attribute it to the proximate cause,
and not to any remote cause.” (quoting Lexmark Int’l, 572 U.S. at
132)). And in Bank of America Corp., the Supreme Court observed
that “[a] claim for damages under the FHA -- which is akin to a ‘tort
action’ -- is no exception to this traditional requirement.” Id. (inter-
nal citation omitted) (quoting Meyer v. Holley, 537 U.S. 280, 285
(2003)).
Thus, we are satisfied that the appropriate meaning of the
phrase “caused by” for foreign sovereign immunity purposes is the
same meaning that has been applied to the standard common law
definition of proximate cause. The term “proximate cause” is com-
posed of two parts. “First, the defendant’s actions must be aUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 39 of 71
24-11310 Opinion of the Court 39
‘substantial factor’ in the sequence of events that led to the plain-
tiff’s injury.” Owens v. Republic of Sudan, 864 F.3d 751, 794 (D.C. Cir.
2017) (quoting Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013)),
vacated in part on other grounds by Opati v. Republic of Sudan, 140 S.
Ct. 1601, 1610 (2020); In re Terrorist Attacks on Sept. 11, 2001, 298 F.
Supp. 3d at 646. “Second, the plaintiff’s injury must have been ‘rea-
sonably foreseeable or anticipated as a natural consequence’ of the
defendant’s conduct.” Owens, 864 F.3d at 794 (quoting Rothstein,
708 F.3d at 91); see also S. Tr. Metals, 894 F.3d at 1329–30 (noting that
for restitution purposes, proximate cause required not just foresee-
ability, but also that the defendant’s misconduct be “a ‘substantial’
or ‘significant contributing cause’” (quoting FindWhat Inv. Grp. v.
FindWhat.com, 658 F.3d 1282, 1309 (11th Cir. 2011))); accord Kemper
v. Deutsche Bank AG, 911 F.3d 383, 392 (7th Cir. 2018). “A require-
ment of proximate cause thus serves, inter alia, to preclude liability
in situations where the causal link between conduct and result is so
attenuated that the consequence is more aptly described as mere
fortuity.” Paroline v. United States, 572 U.S. 434, 445 (2014).
Both factors have been met. First, Saudi Arabia’s alleged
grossly negligent conduct in vetting and hiring Al-Shamrani was a
substantial factor leading to the Plaintiffs’ injuries or deaths. Again,
the Kingdom sent Al-Shamrani to the United States to participate
in flight training for planes that Saudi Arabia had purchased. Al-
Shamrani was only able to access a secure military base at NAS Pen-
sacola because he was employed with the RSAF , was enrolled in
flight training, and was sent to the United States. Saudi Arabia was
responsible for screening Al-Shamrani’s background precisely inUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 40 of 71
40 Opinion of the Court 24-11310
order to prevent potential security threats to the facility and the
people who worked and lived there. Had Saudi Arabia done so and
done so properly, the Amended Complaint alleges, it would have
easily found from a publicly available record Al-Shamrani’s re-
peated expression of violent and extremist views on a variety of
social media platforms. And if it had done so, it is alleged, the King-
dom would have been able to take appropriate action, including
simply not awarding Al-Shamrani the scholarship to come to the
United States for flight training.
More than having just pled a “substantial factor” linking the
two, the Amended Complaint plausibly alleges a direct and imme-
diate connection between the Kingdom’s alleged grossly negligent
conduct in vetting and hiring Al-Shamrani, and the Saudi aviator’s
ensuing shooting rampage.
Finally, the deaths and injuries sustained by the Plaintiffs
were reasonably foreseeable as a natural consequence of the King-
dom’s conduct. If we accept, as we must, the Amended Com-
plaint’s detailed recitation of facts that strongly suggested Al-
Shamrani was a “ticking time bomb,” it follows that it was reason-
ably foreseeable as a natural consequence of grossly negligent vet-
ting that Al-Shamrani would turn violent when he had the chance
at NAS Pensacola.
4. The allegations sufficiently allege that Saudi Arabia en-
gaged in multiple acts of commission.
The district court concluded that the Plaintiffs failed to sat-
isfy the JASTA exception to foreign sovereign immunity becauseUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 41 of 71
24-11310 Opinion of the Court 41
their claims relied on acts of omission by the Saudi government,
not acts of commission. We disagree. As we see it, the foundation
for the Plaintiffs’ gross negligence claim under Florida law contains
far more than acts of omission. It includes allegations of multiple
acts of commission, including the Kingdom’s adoption of Al-
Shamrani’s Form DS-160 and A-2 Visa Application, the Kingdom’s
conduct in affirmatively forwarding these materials to the United
States, and its conduct in sending Al-Shamrani to the United States
first to learn English and then for aviation training at NAS Pen-
sacola.
The term “omission” is not defined in JASTA, so we turn to
the term’s ordinary meaning at the time of enactment. See United
States v. Meyer, 50 F.4th 23, 27 (11th Cir. 2022); United States v.
Dominguez, 997 F.3d 1121, 1124–25 (11th Cir. 2021) (using diction-
ary definitions to define term that was not defined in the statute).
When JASTA was enacted in 2016, Black’s Law Dictionary defined
an “act of omission” or a “negative act” as “[t]he failure to do some-
thing that is legally required; a nonoccurrence that involves the
breach of a legal duty to take positive action,” which “takes the
form of either a forbearance or an omission.” Act, Black’s Law Dic-
tionary (10th ed. 2014). This contrasts with a “positive act” or an
“act of commission,
” which was defined as “[t]he process of doing
or performing; an occurrence that results from a person’s will be-
ing exerted on the external world.” Id. Merriam-Webster’s Dic-
tionary of Law , meanwhile, defined “omission” as “something ne-
glected, left out, or left undone,” whereas “commission” was de-
fined as “an act of committing something,” as in “carry[ing] intoUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 42 of 71
42 Opinion of the Court 24-11310
action deliberately.” Merriam-Webster’s Dictionary of Law 86, 335
(2016).
In sum, what these definitions tell us -- and there is no dis-
pute between the parties about these definitions -- are that acts of
omission are those in which an actor does not take some action that
he was otherwise legally required to undertake, whereas acts of
commission are those that require the actor deliberately to take
some affirmative action or step to doing something or exerting his
will in some way .
The Amended Complaint sufficiently alleges that the King-
dom committed grossly negligent acts of commission rather than
omission. First, the Amended Complaint alleges that “Al-
Shamrani’s Form DS-160 and A-2 application contained false infor-
mation that was knowingly submitted by the Kingdom of Saudi
Arabia to the United States” and that the Form DS-160 included
questions relating to the following:
personal details, travel, companions, contact infor-
mation, passport details, family, work/educa-
tion/training, and security/background. The secu-
rity portion contains fifty-five (55) “yes” or “no” ques-
tions pertaining to such areas as terrorism, espionage,
illegal activity, immigration violations, felony convic-
tions, etc.
Second, the Amended Complaint asserts that on multiple
occasions, Saudi Arabia conducted security screenings for Al-
Shamrani -- deliberate and affirmative acts of will or exertionUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 43 of 71
24-11310 Opinion of the Court 43
designed to accomplish an objective. It alleges that “[a]ll interna-
tional military students . . . must complete local ‘host nation’ secu-
rity screening and medical screening prior to receiving an Invita-
tional Travel Order (ITO) and issuance of a visa to travel to the
United States for training,” and that “Saudi Arabia represented that
it conducted the requisite security, medical, and internal character
vetting of Al-Shamrani, and completed that process on May 15,
2017.” After the Kingdom made this certification, “[o]n August 8,
2017, the visa application process was concluded and Al-Shamrani
was issued his Invitational Travel Orders.” Indeed, Al-Shamrani
“underwent extensive vetting by the Kingdom when he joined the
RSAF,” as well as “before and after his name was put forward to the
Kingdom’s Defense Ministry” “[a]s a prospective trainee in an
American flight program.” Again, the stated purpose of vetting Al-
Shamrani in connection with his “nomination and enrollment into
the U.S. training program” was to comply with “U.S. policies and
procedures, which did not permit access to military training to for-
eign citizens with ties to fundamental and/or extremist ideology
or ties to terrorism.”
Third, Saudi Arabia nominated Al-Shamrani for, and
awarded him, a scholarship which enabled him to go to Texas to
learn English from August 2017 until May 2018, and then to partic-
ipate in the flight training program at NAS Pensacola from May of
2018 until the time of the attack on December 6, 2019. These were
all affirmative acts, deliberate steps undertaken by the Kingdom,
not acts of omission. These acts enabled Al-Shamrani to enter and
live at the military bases in San Antonio, Texas and then at NASUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 44 of 71
44 Opinion of the Court 24-11310
Pensacola. Finally, the Kingdom was responsible for the affirmative
act of sending Al-Shamrani to the United States.
B. The Plaintiffs have failed to sufficiently claim an ex-
ception to foreign sovereign immunity on account of
an obligation to continue to vet Al-Shamrani in the
United States.
The second grouping of claims we have identified alleges
that the Kingdom was grossly negligent in failing to continue to
monitor and vet Al-Shamrani’s social media accounts once he com-
menced training in the United States. The Plaintiffs assert that
Saudi Arabia extensively surveils and monitors its citizens’ mobile
phone and internet activity -- especially when its citizens are living
outside of Saudi Arabia. As a result, the Plaintiffs claim, Saudi Ara-
bia knew about or should have intercepted Al-Shamrani’s ominous
social media messages from the time he arrived in the United States
until the time of the shooting on December 6, 2019. In this respect,
the Plaintiffs highlight Al-Shamrani’s September 11, 2019 tweet
stating “[t]he countdown has begun.
”
Thus, the Plaintiffs say , they have sufficiently pled subject
matter jurisdiction under both the JASTA exception and under the
non-commercial tort exception to the FSIA. However, neither the-
ory works. As for the exception to foreign sovereign immunity
found in JASTA, this bundle of claims is facially insufficient because
it is based on acts of omission, not commission. The Plaintiffs’ al-
ternative theory , that this bundle of claims falls under the non-com-
mercial tort exception found in the FSIA, also fails because the FSIAUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 45 of 71
24-11310 Opinion of the Court 45
affords no exception for discretionary conduct, and the thrust of
this conduct is wholly discretionary in nature.
We begin with the JASTA exception to sovereign immunity.
Under JASTA, “[a] foreign state shall not be subject to the jurisdic-
tion of the courts of the United States . . . on the basis of an omis-
sion or a tortious act or acts that constitute mere negligence.” 28
U.S.C. § 1605B(d). As a preliminary matter, this language suggests
two plausible readings: either foreign sovereign immunity is pre-
served for claims based on any omission as well as for those based
on tortious acts constituting mere negligence, or foreign sovereign
immunity is preserved only for those acts of omission or commis-
sion that amount to merely negligent conduct. In other words, the
question is whether the phrase “that constitute mere negligence”
modifies not only “a tortious act or acts,” but also “an omission.”
In our view, the better reading is the one where the phrase
“that constitute mere negligence” modifies only “a tortious act or
acts.” “The typical way in which syntax would suggest no carryo-
ver modification is that a determiner (a, the, some, etc.) will be re-
peated before the second element.” Antonin Scalia & Bryan A. Gar-
ner, Reading Law: The Interpretation of Legal Texts 148 (2012). Thus,
for example, in the phrase “[a] solid wall or a fence,” “the fence
need not be solid.” Id. at 149 (emphasis omitted). “With postposi-
tive modifiers,” which are modifiers that come after the noun they
modify, “the insertion of a determiner before the second item tends
to cut off the modifying phrase so that its backward reach is lim-
ited.” Id. Thus, for example, in the phrase “[a]n institution or aUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 46 of 71
46 Opinion of the Court 24-11310
society that is charitable in nature,” “any institution probably qual-
ifies, not just a charitable one,” and in the phrase “[a] corporation
or a partnership registered in Delaware,” “the corporation may
probably be registered anywhere.” Id. (emphasis omitted).
In reading the language found in 28 U.S.C. § 1605B(d), the
postpositive modifying phrase “that constitute mere negligence” is
therefore better understood to reach back only to the phrase “a tor-
tious act or acts.” The determiner “a,” which precedes “tortious
act or acts,” signals that the statute contemplates two separate con-
“
cepts --
an omission” and “a tortious act or acts that constitute
mere negligence.” Id. (emphasis added). As we see it, then, the
better reading of JASTA is that “[a] foreign state shall not be subject
to the jurisdiction of the courts of the United States . . . on the basis
of an omission” and “[a] foreign state shall not be subject to the
jurisdiction of the courts of the United States . . . on the basis of .
. . a tortious act or acts that constitute mere negligence.” Id. There-
fore, foreign sovereign immunity bars claims based on any omis-
sions, even if it does not bar claims based on tortious acts consti-
tuting gross negligence.
Under the theory of liability offered, the Plaintiffs allege that
Saudi Arabia, knowing that Al-Shamrani had repeatedly posted ex-
tremist views on his social media accounts, either failed to alert the
United States, or that the Kingdom was grossly negligent in vetting
the airman’s accounts in the first place, because it failed to actually
pick up the repeated expression of extremist views. In either case,USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 47 of 71
24-11310 Opinion of the Court 47
if it had done its job right, Al-Shamrani would have been sent back
home long before the murderous shooting on December 6, 2019.
As we’ve already explained, an act of omission is defined as
“[t]he failure to do something that is legally required; a nonoccur-
rence that involves the breach of a legal duty to take positive ac-
tion.
” Act, Black’s Law Dictionary (10th ed. 2014). This bundle of
claims includes only failure-to-act claims; they are claims of omis-
sion, not commission. Under JASTA, Congress narrowed the uni-
verse of conduct for which a foreign government’s sovereign im-
munity could be abridged. It deliberately chose not to include con-
duct based on omissions in the JASTA exception. Because JASTA
does not subject foreign sovereigns to the jurisdiction of an Amer-
ican court for claims that are based on omissions, the Plaintiffs have
not sufficiently alleged jurisdiction under this statute.
This failure-to-properly-vet theory of liability also fails to
meet the requirements of the non-commercial tort exception
found in the FSIA because these claims are based on the discretion-
ary actions of Saudi officials. Although non-commercial torts are
an exception to foreign sovereign immunity, foreign governments
retain their sovereign immunity in “any claim based upon the exer-
cise or performance or the failure to exercise or perform a discre-
tionary function regardless of whether the discretion be abused.”
28 U.S.C. § 1605(a)(5)(A).
In adjudicating the meaning of the discretionary function
exception found in the Federal Tort Claims Act, 28 U.S.C. § 1346,
the Supreme Court has observed that this exception “marks theUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 48 of 71
48 Opinion of the Court 24-11310
boundary between Congress’ willingness to impose tort liability
upon [a government] and its desire to protect certain governmental
activities from exposure to suit by private individuals.” United
States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 808 (1984). The Courts of Appeals that have addressed
this question have read the discretionary function carve-out to the
FSIA’s non-commercial tort exception in the same way, because
Congress borrowed the same language from the FTCA when it
adopted the FSIA. See Swarna v. Al-Awadi, 622 F.3d 123, 145 (2d Cir.
2010); O’Bryan v. Holy See, 556 F.3d 361, 383–84 (6th Cir. 2009); Fagot
Rodriguez v. Republic of Costa Rica, 297 F.3d 1, 8–9 (1st Cir. 2002);
Joseph v. Off. of the Consulate Gen. of Nigeria, 830 F.2d 1018, 1026 (9th
Cir. 1987). This much the parties agree on.
In essence then, the discretionary function exception affords
a foreign government the flexibility it needs to develop and carry
out its policy. See, e.g., United States v. Gaubert, 499 U.S. 315, 324–25
(1991). By affording sovereign immunity to foreign governments
in the exercise of discretionary functions, “Congress wished to pre-
vent judicial ‘second-guessing’ of legislative and administrative de-
cisions grounded in social, economic, and political policy through
the medium of an action in tort.” Varig Airlines, 467 U.S. at 814.
“In evaluating whether the discretionary-function exception
applies, we first ‘must determine exactly what conduct is at issue.’”
Swafford v. United States, 839 F.3d 1365, 1370 (11th Cir. 2016) (quot-
ing Autery v. United States, 992 F.2d 1523, 1527 (11th Cir. 1993)). We
then apply the Supreme Court’s two-step test. “First, we considerUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 49 of 71
24-11310 Opinion of the Court 49
whether the challenged conduct ‘is a matter of choice for the acting
employee.’” Id. (quoting Berkovitz v. United States, 486 U.S. 531, 536
(1988)). “[C]onduct cannot be discretionary unless it involves an
element of judgment or choice,” and it “is not discretionary ‘when
a federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow’ because ‘the employee
has no rightful option but to adhere to the directive.’” Id. (quoting
Berkovitz, 486 U.S. at 536). Second, “[i]f the conduct involves an
element of judgment and is discretionary, the court ‘must deter-
mine whether that judgment is of the kind that the discretionary
function exception was designed to shield.’” Id. (quoting Berkovitz,
486 U.S. at 536). Thus, for example, the Supreme Court found that
the FAA’s actions in formulating and implementing a “spot-check”
plan for airline inspection was protected by the discretionary func-
tion exception, because the agency had discretion to prescribe “the
periods for, and the manner in, which such inspection . . . shall be
made.” Varig Airlines, 467 U.S. at 816 (quoting 49 U.S.C.
§ 1421(a)(3)(C)) (emphasis omitted).
Applying this test, this bundle of claims falls within a gov-
ernment’s discretionary function. The Amended Complaint does
not enumerate any “statute, regulation, or policy” that “specifically
prescribes a course of action for an employee to follow.” Swafford,
839 F.3d at 1370 (quoting Berkovitz, 486 U.S. at 536). The Plaintiffs
have pointed us to no rule, regulation, or statute commanding the
Kingdom to vet Al-Shamrani’s social media accounts in any way.
Instead, they argue generally that the Kingdom had “no discretion
to facilitate [Al-Shamrani’s] continuing participation in theUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 50 of 71
50 Opinion of the Court 24-11310
program.” But, “[w]here no statute or regulation controls . . . , the
extent of monitoring required or actually accomplished is neces-
sarily a question of judgment, or discretion, for the government.”
Kirchmann v. United States, 8 F.3d 1273, 1276 (8th Cir. 1993).
What’s more, even if the Plaintiffs had identified some writ-
ten duty to continue to monitor Al-Shamrani’s social media ac-
counts -- and they have not -- the argument would still fail under
the second step of the analysis. Numerous cases have found that
decisions regarding the supervision of employees tend to be deci-
sions “of the sort the discretionary function exception was de-
signed to encompass.” Andrews v. United States, 121 F.3d 1430, 1441
(11th Cir. 1997; see also Gaubert, 499 U.S. at 325, 331–32 (“Day-to-
day management . . . regularly requires judgment as to which of a
range of permissible courses is the wisest.”); Carlyle v. United States,
Dep’t of the Army, 674 F.2d 554, 556–57 (6th Cir. 1982) (stating that
“whether or not to supervise [recruits at a hotel], and the extent of
any such supervision, was a planning level, discretionary func-
tion”); Burkhart v. Wash. Metro. Area Transit Auth., 112 F.3d 1207,
1217 (D.C. Cir. 1997) (stating that the “supervision choices” faced
by an employer were “susceptible to policy judgment” because
they “involve a complex balancing of budgetary considerations,
employee privacy rights, and the need to ensure public safety”).
This theory of liability rests on the kinds of judgments, like where,
when, or how to supervise an employee, that are made daily by
supervisors in managing their staff. Thus, under this step too, this
theory of liability falls within the governmental discretionary func-
tion and affords no exception to foreign sovereign immunity .USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 51 of 71
24-11310 Opinion of the Court 51
C. The Plaintiffs have failed to sufficiently claim an ex-
ception to foreign sovereign immunity on account of
the Saudi CLO’s conduct.
The Plaintiffs relatedly claim that the Kingdom’s Country
Liaison Officer negligently failed to supervise Airman Al-Shamrani
when he was enrolled in flight training at NAS Pensacola and that
this failure abrogated foreign sovereign immunity under the FSIA
and JASTA. The Plaintiffs allege that Saudi Arabia was obligated to
assign a CLO to supervise the RSAF trainees at NAS Pensacola and
that the CLO was required to be on site, to monitor the trainees, to
ensure their compliance with relevant rules and regulations and re-
port non-compliance, to report to American and Kingdom person-
nel any issues relating to or arising from the trainees, and, perhaps
most importantly, to assist in routine inspections of trainees and
their assigned quarters.
The Plaintiffs say that the CLO was not on-site, did not assist
in conducting housing inspections, and generally did not perform
the supervisory job duties that he was responsible for. As a result,
the Plaintiffs reason, the CLO did not find Al-Shamrani’s gun and
ammunition, either in his barracks or in his pilot helmet bag, and
therefore was unable to prevent the shootings. Thus, the Plaintiffs
assert that the CLO’s failure to properly supervise Al-Shamrani on
the ground at NAS Pensacola was not a discretionary function, es-
tablishing jurisdiction under the non-commercial tort exception to
the FSIA. Alternatively, the Plaintiffs assert that the CLO’sUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 52 of 71
52 Opinion of the Court 24-11310
supervisory failures amounted to grossly negligent conduct and
thus fall within JASTA’s exception to sovereign immunity .
We remain unpersuaded. First, taking the allegations con-
tained in the Amended Complaint as true, we conclude that the
CLO’s actions were discretionary functions, barring the application
of the FSIA’s non-commercial tort exception. Second, the CLO’s
alleged failures to act were based on omissions, excluding them
from JASTA’s reach too.
We begin with the non-commercial tort exception to the
FSIA. Again, foreign governments retain their sovereign immunity
in “any claim based upon the exercise or performance or the failure
to exercise or perform a discretionary function regardless of
whether the discretion be abused.” 28 U.S.C. § 1605(a)(5)(A). “In
evaluating whether the discretionary-function exception applies,
we first ‘must determine exactly what conduct is at issue.’” Swaf-
ford, 839 F.3d at 1370 (quoting Autery, 992 F.2d at 1527). We then
apply the Supreme Court’s two-step test, which we have already
described.
Here, the Plaintiffs’ bundle of claims concerning the CLO’s
failure to properly supervise Al-Shamrani fails for a number of rea-
sons. For starters, the Plaintiffs identify no provision or policy doc-
ument that requires the Kingdom to assign a CLO in the first place.
Any fair reading of the documents referenced in the Amended
Complaint yields the conclusion that assigning a CLO is optional.
Paragraph 170 of the Amended Complaint alleges:USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 53 of 71
24-11310 Opinion of the Court 53
At all times overlapping with Al-Shamrani’s presence
in the United States and during the attack at NAS,
Saudi Arabia was required to have an RSAF CLO as-
signed to NAS Pensacola to assist in administering
RSAF Students on base.
However, the mandatory language found in this paragraph
is flatly contradicted by the actual sources cited and incorporated
in the following paragraphs -- the Security Assistance Management
Manual, DSCA, Chapter 10, IMET (“SAM Manual”), as well as the
U.S. Naval Flight Student Training Administration Manual (“TA
Manual”).4
4 Although “a court generally may not consider matters outside of the plead-
ings without treating the motion as a motion for summary judgment,” one
“exception[] to this conversion rule” is “the incorporation-by-reference doc-
trine.” Johnson v. City of Atlanta, 107 F.4th 1292, 1298 (11th Cir. 2024) (quoting
Baker v. City of Madison, 67 F.4th 1268, 1276 (11th Cir. 2023)). “[U]nder the
incorporation-by-reference doctrine,” “a court may properly consider a docu-
ment” when resolving a motion to dismiss “if the document is (1) central to
the plaintiff’s claims; and (2) undisputed, meaning that its authenticity is not
challenged.” Id. at 1300. Not only is the authenticity of the SAM Manual and
the TA Manual undisputed, and not only are these documents central to the
Plaintiffs’ claims because they are the alleged sources of the CLO’s obligations,
but also they are expressly referenced in the Amended Complaint.
What’s more, we have previously considered materials outside the complaint
when resolving a motion to dismiss when those materials directly contradict
the allegations contained in the complaint. See, e.g., Horsley v. Feldt, 304 F.3d
1125, 1136 (11th Cir. 2002) (considering news article that contradicted the
plaintiff’s defamation claim); Baker, 67 F.4th at 1277–78 (stating that “where a
video is clear and obviously contradicts the plaintiff’s alleged facts, we acceptUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 54 of 71
54 Opinion of the Court 24-11310
The SAM Manual says nothing about whether a country is
required to assign a CLO, laying out only the requirements that
must be met in order for CLOs to be authorized in the first place,
but the TA Manual makes it crystal clear that assigning a CLO is
wholly optional.
In relevant part, the TA Manual states:
At the request of another country and with the con-
currence of Navy International Programs Office
(NIPO), NETSAFA, and CNATRA, a CLO may be as-
signed to assist with the administrative duties for
IMSs from his or her country. When a CLO is not
assigned for a particular country, the country’s senior
NFS located at the training activity may be used in
this capacity. In case of serious injury or death where
no CLO is assigned, the TRAWING IMSO shall act as
coordinator with the IMS’s country representatives.
Notably, this section uses precatory language -- it says that a “CLO
may be assigned,” not that a CLO shall be assigned. What’s more,
this section clearly contemplates situations in which “a CLO is not
assigned for a particular country” or situations in which “no CLO
is assigned.” This language tells us that foreign countries, including
Saudi Arabia, were not required to assign a CLO.
the video’s depiction instead of the complaint’s account, and view the facts in
the light depicted by the video” (internal citations omitted)); Hoffman-Pugh v.
Ramsey, 312 F.3d 1222, 1225–26 (11th Cir. 2002) (reviewing contents of book
that contradicted the plaintiff’s libel and slander claims).USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 55 of 71
24-11310 Opinion of the Court 55
However, the Plaintiffs argue, as a fallback, that even if Saudi
Arabia was not required to assign a CLO in the first place, if the
Kingdom chose to provide one anyway, any CLO they assigned had
various duties and obligations enumerated in the TA Manual, and
these were mandatory . These included, as relevant here, “[m]ain-
tain[ing] contact with . . . the [International Military Students] rep-
resented” by the CLO, Naval Flight Student Training Administration
Manual § 902d(3)(d) (2014), “[e]nsur[ing] that [students] adhere[d]
to [naval] regulations,” id. § 902d(3)(g), as well as “[a]ssist[ing] in
routine inspections of [International Military Students] and their
assigned quarters,” id. § 902d(3)(i).
The main problem with this alternative theory, however, is
that these duties and responsibilities are discretionary functions.
Thus, for example, the decision by the Navy when to inspect bar-
racks, how often to conduct those inspections, what those inspec-
tions actually involved, and whether and when to seek the assis-
tance of the CLO in conducting those inspections, are wholly dis-
cretionary in nature. See, e.g., Varig Airlines, 467 U.S. at 815–16; Fos-
ter Loing, Inc. v. United States, 973 F.3d 1152, 1158–60, 1169 (11th
Cir. 2020) (finding that U.S. Forestry Branch’s controlled burn of an
area fell within discretionary function exception because “‘the na-
ture of the actions taken’ by U.S. Forestry Branch officials in ob-
serving, monitoring, or maintaining the controlled burn were ‘sus-
ceptible to policy analysis’” (quoting Gaubert, 499 U.S. at 325)).
Moreover, to the extent the Plaintiffs assert that the CLO’s
supervisory functions included ensuring that the airmen adheredUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 56 of 71
56 Opinion of the Court 24-11310
to naval regulations and maintained appropriate contacts with the
CLO, those functions also are discretionary in nature. See, e.g., An-
drews, 121 F.3d at 1441 (“[D]ecisions regarding the exercise of su-
pervisory authority are of the sort the discretionary function ex-
ception was designed to encompass.”); Gaubert, 499 U.S. at 325,
331–32 (“Day-to-day management . . . regularly requires judgment
as to which of a range of permissible courses is the wisest.”); Car-
lyle, 674 F.2d at 556–57 (stating that “whether or not to supervise
[recruits at a hotel], and the extent of any such supervision, was a
planning level, discretionary function”); Burkhart, 112 F.3d at 1217
(stating that the “supervision choices” faced by an employer were
“susceptible to policy judgment” because they “involve a complex
balancing of budgetary considerations, employee privacy rights,
and the need to ensure public safety”).
The Plaintiffs also claim that the CLO’s negligent failure to
supervise Al-Shamrani at the Naval Air Station satisfies the jurisdic-
tional requirements of JASTA. The problem with this theory is that
these allegations once again rely solely on acts of omission.
The Plaintiffs allege that the CLO abandoned his post when
he left NAS Pensacola in June 2019, travelled to Saudi Arabia, re-
turned to Pensacola only between August 19 and August 29, 2019,
left again for Saudi Arabia, and then came back to the United States
for five days in September 2019, whereupon he stayed in a hotel in
Orlando. In essence, the Plaintiffs have alleged that because the
CLO was not at NAS Pensacola, including for the more than two-
month period leading up to Al-Shamrani’s attack, he could not andUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 57 of 71
24-11310 Opinion of the Court 57
did not do his job in inspecting students’ housing, which could have
prevented the attack.
As we’ve observed, however, the Plaintiffs cannot bring
claims under JASTA based on omissions. And the claims surround-
ing the CLO’s conduct are claims of omission. They include the
CLO’s absence from NAS Pensacola for almost all of the relevant
timeframe, and thus his failure to assist the Navy in conducting
housing inspections. The Plaintiffs say that “the mere presence of
an RSAF CLO at NAS Pensacola from September to December
2019 may have ‘provided 2nd Lt. Al-Shamrani with better oversight
and resulted in proactive intervention by [Saudi Arabia]’ prior to
the attack.” This theory of liability still hinges on an essential act
of omission by the CLO -- the failure to assist the Navy in searching
the barracks of the airman. Again, the failure to act is the sin of
omission -- “[t]he failure to do something that is legally required; a
nonoccurrence that involves the breach of a legal duty to take pos-
itive action,
” Act, Black’s Law Dictionary (10th ed. 2014) -- not com-
mission. It is excluded from the JASTA exception to foreign sover-
eign immunity because Congress chose to immunize the foreign
sovereign’s acts of omission from review in an American court.
In short, the Plaintiffs have failed to sufficiently claim an ex-
ception to foreign sovereign immunity on account of the Saudi
CLO’s conduct.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 58 of 71
58 Opinion of the Court 24-11310
D. The Plaintiffs have failed to sufficiently claim an ex-
ception to foreign sovereign immunity on account of
the intentional torts committed by Al-Shamrani.
The intentional torts committed by Al-Shamrani do not fall
under the non-commercial tort exception to the FSIA or under
JASTA, because Al-Shamrani was not acting within the scope of his
employment. In essence, the Plaintiffs claim that the Kingdom of
Saudi Arabia is vicariously liable for Al-Shamrani’s criminal acts
and intentional torts. However, the Plaintiffs cannot attribute lia-
bility to the Kingdom for the intentional acts of murder, assault,
battery, false imprisonment, and intentional infliction of emotional
distress because the Plaintiffs have failed to plausibly plead that Al-
Shamrani acted within the scope of his employment when he
opened fire on December 6, 2019.
We begin again with the text. The FSIA’s “non-commercial
tort” exception does not immunize foreign sovereigns from liabil-
ity for torts “occurring in the United States and caused by the tor-
tious act or omission of that foreign state or of any official or em-
ployee of that foreign state while acting within the scope of his of-
fice or employment.” 28 U.S.C. § 1605(a)(5). “The question of
whether an employee’s conduct was within the scope of his em-
ployment ‘is governed by the law of the state where the incident
occurred.’” Flohr, 84 F.3d at 390 (quoting S.J. & W. Ranch, Inc. v.
Lehtinen, 913 F.2d 1538, 1542 (11th Cir. 1990)). Since the NAS Pen-
sacola terrorist attack took place in Florida, Florida tort law gov-
erns.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 59 of 71
24-11310 Opinion of the Court 59
Under Florida law, “[a]n employee’s conduct is within the
scope of his employment only if it is of the kind he is employed to
perform, it occurs substantially within the time and space limits of
the employment and it is activated at least in part by a purpose to
serve the master.” Morrison Motor Co. v. Manheim Servs. Corp., 346
So. 2d 102, 104 (Fla. 2d DCA 1977); see also Whetzel v. Metro. Life Ins.
Co., 266 So. 2d 89, 91 (Fla. 4th DCA 1972); Gowan v. Bay County, 744
So. 2d 1136, 1138 (Fla. 1st DCA 1999).
Although it is undisputed that Al-Shamrani’s conduct oc-
curred substantially within the time and space limits of his employ-
ment, since he committed the shooting at the Naval Base where he
was sent as part of his job, the other two prongs of the scope-of-
employment test are not plausibly alleged in the Amended Com-
plaint. Al-Shamrani was awarded a scholarship to enter a joint mil-
itary program in the United States, the purpose of which was to
learn English and then to attend pilot training. Al-Shamrani’s con-
duct underlying his intentional torts was simply not in the same
universe of conduct he was employed to perform. It is beyond real
dispute that purchasing a firearm, allegedly in violation of Saudi
Arabia’s policy and procedures, and then attempting to commit
mass murder on an American military base, where he was sup-
posed to be learning how to operate military equipment and bring-
ing that knowledge back to Saudi Arabia, were not part of Al-
Shamrani’s job in coming to the United States. Put differently, “this
case lacks a sufficient nexus between the employee’s job and his
[intentional torts committed against others] to raise even a juryUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 60 of 71
60 Opinion of the Court 24-11310
question as to the scope of employment issue.” Spencer v. Assurance
Co. of Am., 39 F.3d 1146, 1150 (11th Cir. 1994).
Nor can it fairly be said that Al-Shamrani’s murderous ac-
tions were animated to serve, at least in part, the interests of the
Kingdom of Saudi Arabia. The Plaintiffs tell us that the Kingdom
has pending the purchase of more than $350 billion in military con-
tracts with the United States. As we’ve seen, a significant portion
of the arms trade between the United States and the Kingdom re-
quires training Saudi military personnel on how to operate the
complicated and expensive military hardware they have purchased.
Indeed, we are told that training Saudi military personnel is a criti-
cal component and condition of purchasing aircraft, vessels, mili-
tary equipment, and other various weapons systems from the
United States. This trade is the very reason why Al-Shamrani was
in the United States in the first place. It is difficult to see how his
murderous assault in any way furthered the interests of the King-
dom in buying and using complex American military equipment.
And if there were any doubt about whether Al-Shamrani’s actions
undermined the interests of the Saudi government, that doubt is
resolved by the King of Saudi Arabia’s statements in the immediate
aftermath of Al-Shamrani’s attack. The Amended Complaint as-
serts that the King of Saudi Arabia said that he was “finding out
what took place” to cause the attack, that he would “be involved in
taking care of the families and loved ones,” and that he and the
Crown Prince were “devastated by what took place in Pensacola”
and “sen[t] their condolences.”USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 61 of 71
24-11310 Opinion of the Court 61
Even assuming the allegations in the Amended Complaint
are true that Al-Shamrani wore his RSAF uniform when he com-
mitted the shooting, that Saudi Arabia radicalized Al-Shamrani,
and that Saudi Arabia also sought to harm western countries, it still
fails as a matter of logic that Saudi Arabia’s interests would be
served through a shooting rampage. It makes no sense to say that
it was within the scope of Al-Shamrani’s employment with the
Kingdom for him to come to the United States and destroy that
relationship. Similarly, it is not plausible to assert that Saudi Arabia
would send its pilots for training in the United States to do anything
other than learn how to fly those planes. It could not have fallen
within the scope of his employment for Al-Shamrani to come to
the United States and commit a murderous rampage, at the same
time his master was buying the very equipment he was being
taught how to fly.
Moreover, the JASTA exception does not apply to Al-
Shamrani’s intentional torts. Under JASTA:
A foreign state shall not be immune from the jurisdic-
tion of the courts of the United States in any case in
which money damages are sought against a foreign
state for physical injury to person or property or
death occurring in the United States and caused by --
(1) an act of international terrorism in the United
States; and (2) a tortious act or acts of the foreign
state, or of any official, employee, or agent of that
foreign state while acting within the scope of his or
her office, employment, or agency, regardless where
the tortious act or acts of the foreign state occurred.”USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 62 of 71
62 Opinion of the Court 24-11310
28 U.S.C. § 1605B(b). Subsection (2) bars jurisdiction under JASTA,
because the tortious acts of Al-Shamrani were not done while act-
ing within the scope of his employment. The Plaintiffs
acknowledge that the same scope-of-employment analysis applica-
ble to the non-commercial tort exception found in the FSIA applies
to the JASTA exception. As we’ve already observed, Al-Shamrani
was not acting within the scope of his employment when he com-
mitted the intentional torts at issue. Thus, the Plaintiffs have not
met the requirements under JASTA. These intentional torts afford
no exception to foreign sovereign immunity.
E. The Plaintiffs have failed to sufficiently claim an ex-
ception to foreign sovereign immunity under JASTA on
account of Saudi Arabia’s alleged support for terror-
ism.
The Plaintiffs also advance a theory of liability under the
Anti-Terrorism Act against Saudi Arabia because, they say, the
Kingdom supported terrorism, but this theory fails because, among
other reasons, it does not adequately plead proximate cause.
The federal Anti-Terrorism Act, 18 U.S.C. § 2333, provides a
cause of action for United States citizens to sue for damages in con-
nection with certain acts of international terrorism. The ATA pro-
vides, in pertinent part:
(a) Action and jurisdiction.--Any national of the United
States injured in his or her person, property, or business
by reason of an act of international terrorism, or his or
her estate, survivors, or heirs, may sue therefor in anyUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 63 of 71
24-11310 Opinion of the Court 63
appropriate district court of the United States and shall
recover threefold the damages he or she sustains and the
cost of the suit, including attorney’s fees.
. . .
(d) Liability.--
(1) Definition.--In this subsection, the term “person”
has the meaning given the term in section 1 of title
1.
(2) Liability.--In an action under subsection (a) for an in-
jury arising from an act of international terrorism
committed, planned, or authorized by an organiza-
tion that had been designated as a foreign terrorist
organization under section 219 of the Immigration
and Nationality Act (8 U.S.C. 1189), as of the date on
which such act of international terrorism was com-
mitted, planned, or authorized, liability may be as-
serted as to any person who aids and abets, by know-
ingly providing substantial assistance, or who con-
spires with the person who committed such an act of
international terrorism.
18 U.S.C. § 2333.
Although the ATA creates a statutory cause of action for in-
jury resulting from acts of international terrorism, a plaintiff suing
a foreign country under the ATA still must identify an applicable
exception to foreign sovereign immunity in order for his claim toUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 64 of 71
64 Opinion of the Court 24-11310
survive a facial jurisdictional attack. See, e.g., Watson Br. at 52 n.12
(critiquing the district court’s analysis for “collaps[ing] the exist-
ence of a cause of action under the ATA with the applicability of
an exception to foreign sovereign immunity under the FSIA”); id. at
21 (listing JASTA as the applicable exception to foreign sovereign
immunity for the Plaintiffs’ ATA claims). The Plaintiffs argue only
that this theory falls within the ambit of the JASTA exception to
the FSIA, not the non-commercial tort exception found in the FSIA.
Again, JASTA requires that the death or injury occurring in
the United States be “caused by” an act of international terrorism
in the United States and a tortious act or acts of the foreign state,
or of any employee acting within the scope of his employment. See
28 U.S.C. § 1605B(b).
The Plaintiffs’ support-for-terrorism claims do not fall
within JASTA because they fail at the causation step. In essence,
the Plaintiffs’ ATA claims rely on the theory that Saudi Arabia
funded and equipped AQAP to fight in the ongoing Yemeni civil
war, and that it was reasonably foreseeable that funding AQAP in
Yemen could result in terroristic violence in the United States. The
Amended Complaint alleges that Saudi citizens have joined or
funded AQAP, that a Saudi-led coalition in Yemen has acted in con-
cert with al-Qaeda, and that Saudi Arabia has failed to prosecute
individuals raising money on behalf of AQAP.
The chain of causation between these actions and Al-
Shamrani’s actions is wholly attenuated and far too indirect. The
claim that the Kingdom funded and assisted AQAP in Yemen, evenUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 65 of 71
24-11310 Opinion of the Court 65
if true, is different from directing, supporting, or funding acts of
terror in the United States. The Amended Complaint fails to plau-
sibly connect the two. The asserted goal of the Kingdom in sup-
porting one side of a civil war in Yemen is not in the same universe
of any goal associated with Al-Shamrani’s shooting spree in the
United States. The Plaintiffs have failed plausibly to allege that any
support provided to AQAP in Yemen was a substantial factor, or
even a remote factor in the chain of events leading to Al-Shamrani’s
attack on December 6, 2019. Nor does the Amended Complaint
assert that it was reasonably foreseeable that funding AQAP in
Yemen would result, or even might result, in the planning of this
attack in the United States, much less that the Kingdom funded and
supported Al-Shamrani’s training in the United States with the in-
tention to commit these acts of terror.
The Amended Complaint also attempts to articulate a the-
ory that Saudi Arabia supported terrorism by supporting Al-
Shamrani, who committed an act of terrorism. But this theory fails
because, again, Al-Shamrani was not acting within the scope of his
employment when he attacked NAS Pensacola, and there is no in-
dication or plausible assertion that he attacked NAS Pensacola to
serve the interests of the Kingdom. In short, the Plaintiffs’ plead-
ings afford no JASTA exception to the Kingdom’s foreign sovereign
immunity.
F. The Plaintiffs have failed to sufficiently state a claim
for breach of contract for jurisdictional purposes; andUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 66 of 71
66 Opinion of the Court 24-11310
the district court did not abuse its discretion in deny-
ing the Plaintiffs’ Motion for Jurisdictional Discovery.
Finally, we conclude that the district court correctly dis-
missed the Plaintiffs’ breach of contract claim, since the allegations
in the Amended Complaint do not establish a prima facie breach of
contract claim. Because the Amended Complaint fails to state a
claim for breach of contract as a matter of law , the district court
also correctly denied the Plaintiffs’ Motion for Jurisdictional Dis-
covery. The breach of contract claim is premised on the LOA be-
tween Saudi Arabia and the United States, which the Plaintiffs say
waives Saudi Arabia’s sovereign immunity. Two reasons heavily cut
against the Plaintiffs’ claim.
First, the indemnification provision in the LOA is not a suffi-
ciently clear manifestation of the Kingdom’s intent to waive sover-
eign immunity. As this Court has observed, “[f ]or purposes of the
FSIA, a foreign state expressly waives its right to immunity only
where its intent to do so is clear and unambiguous.” Architectural
Ingenieria Siglo XXI, LLC v. Dominican Republic, 788 F.3d 1329, 1338
(11th Cir. 2015). “And as a general rule, explicit waivers of sover-
eign immunity are narrowly construed in favor of the sovereign
and are not enlarged beyond what the language requires.” Id. (in-
ternal quotation marks omitted) (quoting World Wide Minerals, Ltd.
v. Republic of Kazakhstan, 296 F.3d 1154, 1162 (D.C. Cir. 2002)).5 The
5 Foreign states also may waive their sovereign immunity implicitly, but we
have found that implicit waiver is a narrow exception applying only inUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 67 of 71
24-11310 Opinion of the Court 67
requirement that an express waiver of sovereign immunity be
“clear, complete, unambiguous, and unmistakable” is a particularly
strict one. Aquamar, 179 F.3d at 1292 (citation omitted). In Aqua-
mar, a panel of this Court held that a document containing the fol-
lowing statement was insufficient to waive sovereign immunity:
“[t]he Republic of Ecuador . . . ha[s] made it clear that any immun-
ity from jurisdiction has been waived . . . . PNB hereby affirms that
it is the intention of the Republic to waive sovereign immunity
. . . .” Id. (alterations in original). We found that this statement
“merely states the PNB lawyers’ opinion that Ecuador either had
filed an explicit waiver of immunity or planned to file one at some
point,” and that “[a]n express waiver of immunity must be more
exact than this.” Id.
The Plaintiffs’ contractual theory of liability is that Saudi
Arabia breached its contract with the United States, based on the
indemnification provision in a sample LOA. Because there is an
indemnification provision, the Plaintiffs’ argument goes, Saudi Ara-
bia waived sovereign immunity in its LOA with the United States.
But the relevant text of the indemnification provision is not close
to a “clear and unambiguous” waiver as required under the law.
particular circumstances not found here, such as where the foreign state agrees
to arbitrate in another country, agrees that the law of a particular country
should govern a contract, or files a responsive pleading in an action without
raising the defense of sovereign immunity. See Architectural Ingenieria Siglo
XXI, 788 F.3d at 1338.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 68 of 71
68 Opinion of the Court 24-11310
Architectural Ingenieria Siglo XXI, 788 F.3d at 1338. The indemnifica-
tion provision in the generic LOA contract reads this way:
3.1. The Purchaser recognizes that the [U.S. Gov-
ernment (“USG”)] will procure and furnish the items
described in this LOA on a non-profit basis for the
benefit of the Purchaser. The Purchaser therefore un-
dertakes to indemnify and hold the USG, its agents,
officers, and employees harmless from any and all
loss or liability (whether in tort or in contract) which
might arise in connection with this LOA because of:
3.1.1. Injury to or death of personnel of the
Purchaser or third parties.
There is even less language to work with in this case than in Aqua-
mar: the generic LOA does not mention waiving sovereign immun-
ity at all, let alone express an intention to waive sovereign immun-
ity like in Aquamar. Instead, it only generally references indemnifi-
cation.
What’s more, this provision does not waive Saudi Arabia’s
sovereign immunity because the LOA does not contemplate the
liability at issue in this case. Again, the Plaintiffs allege that LOAs
involve the purchase of defense articles or the performance of
defense services. Under the terms of the LOA, the foreign state
agrees to indemnify the United States with respect to procure-
ment and furnishing of the items being sold in the LOA. An
agreement to indemnify the United States on that narrow
ground does not mean that the foreign state has also agreed toUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 69 of 71
24-11310 Opinion of the Court 69
waive its sovereign immunity in a situation like the one that oc-
curred here, which involves a trainee attacking a U.S. military in-
stallation, completely outside the scope of the contract.
Because the LOA’s indemnification provision does not waive
sovereign immunity, the Plaintiffs have not alleged an exception to
the FSIA in Count Nineteen. The Amended Complaint is insuffi-
cient as a matter of law to establish a prima facie case that the dis-
trict court had jurisdiction on this Count. Butler, 579 F.3d at 1314.
The Plaintiffs also claim, in Count Nineteen of the Amended
Complaint, that there is a second agreement that waives the King-
dom’s sovereign immunity: an oral contract between Saudi Arabia
and the United States that Saudi Arabia would cooperate fully in
the investigation and compensate the victims for its employee’s at-
tack in exchange for the release of RSAF trainees in American cus-
tody and their return to Saudi Arabia. The Plaintiffs’ argument is
unpersuasive because the Amended Complaint does not provide a
basis for finding an express or an implied waiver. In particular, an
agreement to fully cooperate with an investigation and to compen-
sate victims says nothing about sovereign immunity , let alone waiv-
ing it.
Similarly, additional allegations in the Amended Complaint
are insufficient. Thus, for example, the Amended Complaint al-
leges that “President Trump also detailed the agreement, and
waiver of immunity, when he indicated that the King of Saudi Ara-
bia and its Crown Prince expressly agreed to ‘tak[e] care of the fam-
ilies [and] help out the families very greatly.’” This statement fallsUSCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 70 of 71
70 Opinion of the Court 24-11310
far short of an agreement to be sued by the victims’ families or of
consenting to jurisdiction in an American court.
Since the Amended Complaint fails to state a prima facie
breach of contract claim, the district court correctly denied the
Plaintiffs’ Motion for Jurisdictional Discovery on Count Nineteen.
“[W]hen facts that go to the merits and the court’s jurisdiction are
intertwined and genuinely in dispute, parties have a ‘qualified right
to jurisdictional discovery.’” Am. C.L. Union of Fla., Inc. v. City of
Sarasota, 859 F.3d 1337, 1341 (11th Cir. 2017) (quoting Eaton v. Dor-
chester Dev., Inc., 692 F.2d 727, 730 n.7 (11th Cir. 1982)). “[T]he prin-
ciples of comity underlying the FSIA require the district court,
when deciding whether or not to allow jurisdictional discovery
from a foreign sovereign, to balance the need for ‘discovery to sub-
stantiate exceptions to statutory foreign sovereign immunity’
against the need to ‘protect[] a sovereign’s or sovereign agency’s le-
gitimate claim to immunity from discovery.’” Butler, 579 F.3d at
1314 (quoting First City, Texas-Houston, N.A. v. Rafidain Bank, 150
F.3d 172, 176 (2d Cir. 1998)). This analysis “serves to ensure that
jurisdictional discovery is ‘ordered circumspectly and only to verify
allegations of specific facts crucial to an immunity determination.’”
Id. (quoting Rafidain Bank, 150 F.3d at 176). Thus, for example, this
Court has previously found that a district court abuses its discretion
when it allows jurisdictional discovery but the complaint is insuffi-
cient as a matter of law to establish a prima facie case that the dis-
trict court had jurisdiction. Id. at 1314–15.USCA11 Case: 24-11310 Document: 50-1 Date Filed: 11/10/2025 Page: 71 of 71
24-11310 Opinion of the Court 71
The Plaintiffs concede that jurisdictional discovery is unnec-
essary for any of their claims other than the breach of contract
matter. But as a matter of law, the allegations in the Amended
Complaint, taking them as true, do not establish a prima facie case
that the district court had jurisdiction to hear the breach of con-
tract claim, since the sample LOA, on which the Plaintiffs’ theory
is based, does not waive sovereign immunity. The Plaintiffs did not
meet their high burden to demonstrate that jurisdictional discovery
was warranted, since obtaining discovery could not help the Plain-
tiffs “substantiate [an] exception[] to statutory foreign sovereign
immunity.” Id. at 1314 (quoting Rafidain Bank, 150 F.3d at 176). The
district court did not abuse its considerable discretion.
In sum, we affirm in part, reverse in part, and remand the
case to the district court for further proceedings, including, in the
first instance, answering the other jurisdictional question raised by
the Kingdom: whether the first bundle of claims arising out of the
Kingdom’s conduct in hiring, vetting, and sending its airman to the
United States survives the factual challenges.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
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