Al-Tamimi v. Adelson
264 F. Supp. 3d 69
| D.D.C. | 2017Background
- Palestinian and Palestinian-American plaintiffs sued 49 defendants (individuals, NGOs, banks, corporations, and the U.S.) alleging a multi-decade conspiracy, war crimes, genocide, aiding-and-abetting, and ongoing trespass tied to Israeli settlement expansion in the West Bank, Gaza, and East Jerusalem; plaintiffs sought $1 billion.
- Claims were brought primarily under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA); plaintiffs also pleaded common-law torts (e.g., civil conspiracy).
- Elliott Abrams was originally named individually; the U.S. substituted itself for Abrams under the Westfall Act for acts alleged to have occurred during his federal service.
- Defendants moved to dismiss under Rule 12(b)(1), arguing lack of subject matter jurisdiction based on the political question doctrine and, as to the United States, sovereign immunity and FTCA exceptions.
- The court concluded it lacked jurisdiction: (1) plaintiffs’ claims present non-justiciable political questions implicating U.S. foreign policy and sovereignty over disputed territories; (2) the United States did not waive sovereign immunity for the international-law claims and FTCA bars (foreign-country, discretionary-function, and exhaustion defects) apply; dismissal of all claims was ordered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims are justiciable or present non-justiciable political questions | Plaintiffs asked the court to adjudicate legality of settlements, state sovereignty, and alleged international crimes | Defendants argued adjudication requires foreign-policy determinations committed to political branches and risks embarrassment to Executive | Court: Claims present non-justiciable political questions (Baker factors implicated); dismissal for lack of subject-matter jurisdiction |
| Whether U.S. may be substituted for Abrams under Westfall Act and scope-of-employment | Plaintiffs contended many alleged acts occurred outside Abrams’s federal employment (30-year span) | U.S. certified Abrams acted within scope for actions during his White House service; substitution appropriate for those acts | Court: AG certification unrebutted as to acts during Abrams’s federal tenure; U.S. substituted for those claims; remaining non-federal-allegations leave Abrams individually named but dismissal still follows for justiciability |
| Whether the FTCA waives sovereign immunity for plaintiffs’ international-law and related tort claims against the U.S. | Plaintiffs invoked FTCA and federal jurisdiction for tort claims arising from harms tied to settlements | U.S. argued ATS does not waive sovereign immunity; FTCA waiver applies only to state-law torts and contains foreign-country and discretionary-function exceptions; plaintiffs failed to exhaust administrative remedies | Court: No waiver for international-law claims; FTCA does not waive immunity for customary international-law violations; administrative-exhaustion and foreign-country exception bar FTCA claims |
| Whether discretionary-function or other FTCA exceptions apply | Plaintiffs argued tort claims could proceed against U.S. | U.S. argued communications by a National Security Council official were discretionary foreign-policy acts shielded by the discretionary-function exception | Court: Abrams’s alleged communications were discretionary and tied to foreign-policy judgment; discretionary-function exception applies, providing an independent basis for dismissal |
Key Cases Cited
- Baker v. Carr, 369 U.S. 186 (political question factors for justiciability)
- Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (foreign-affairs matters committed to political branches)
- Haig v. Agee, 453 U.S. 280 (conduct of foreign relations entrusted to political branches)
- Sosa v. Alvarez–Machain, 542 U.S. 692 (ATS does not create new causes of action or waive sovereign immunity)
- McNeil v. United States, 508 U.S. 106 (FTCA administrative-exhaustion requirement is jurisdictional)
- F.D.I.C. v. Meyer, 510 U.S. 471 (FTCA waiver limited to state-law causes of action)
- United States v. Gaubert, 499 U.S. 315 (discretionary-function test under FTCA)
- Berkovitz v. United States, 486 U.S. 531 (discretionary-function framework)
- W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400 (act of state doctrine prevents invalidation of foreign sovereign acts)
- Doe I v. State of Israel, 400 F. Supp. 2d 86 (similar claims found non-justiciable; persuasive precedent)