Bassem Al-Tamimi v. Sheldon Adelson, 916 F.3d 1

Background

Eighteen Palestinian plaintiffs (Palestinian nationals and Palestinian Americans) and a village council sued U.S. individuals and entities under the Alien Tort Statute and TVPA, alleging a conspiracy to expel non‑Jews from the West Bank, East Jerusalem, and Gaza (the “disputed territory”).
Defendants included wealthy U.S. individuals, tax‑exempt organizations, banks, construction/support firms, and a former U.S. deputy national security advisor; alleged conduct included funding settlements, arming or supporting militias, property destruction, and public endorsement.
Plaintiffs pleaded four counts: civil conspiracy (based on genocide and property theft), genocide and other war crimes (law of nations), aiding and abetting those crimes, and trespass to property.
The district court dismissed for lack of subject‑matter jurisdiction under the political question doctrine, identifying multiple political questions (sovereignty, landowner rights, legality of settlements, whether acts constitute genocide, and whether supporting settlements is unlawful).
On appeal, the D.C. Circuit considered (1) whether the political‑question challenge was forfeited, (2) whether the doctrine is jurisdictional, and (3) whether the plaintiffs’ claims in fact present non‑justiciable political questions.
The court reversed dismissal, holding only the sovereignty question is a jurisdictional political question and that plaintiffs’ genocide and related law‑of‑nations claims are judicially manageable and thus not barred at the jurisdictional stage.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs forfeited their challenge to the political‑question dismissal	Plaintiffs argued they did not forfeit because they incorporated a prior brief and had reasonably relied on court instructions limiting repetition	Defendants argued incorporation by reference improperly evaded briefing rules and forfeited the issue	Not forfeited — court accepted incorporation here given circumstances and opportunity to respond
Whether political‑question doctrine is jurisdictional	Plaintiffs assumed dismissal was erroneous regardless of jurisdictional characterization	Defendants accepted district court’s jurisdictional treatment	Court treated doctrine as jurisdictional (following Schlesinger) and reviewed accordingly
Whether plaintiffs’ claims present nonjusticiable political questions (sovereignty over disputed territory)	Plaintiffs contended claims (genocide, aiding, trespass) can be adjudicated under the ATS without resolving sovereignty	Defendants argued adjudication implicates sovereignty, foreign policy, and would conflict with Executive/Legislative prerogatives	Sovereignty question is a political question reserved to political branches and non‑justiciable; but it is extricable here — not indispensable to all claims
Whether genocide and other law‑of‑nations claims are justiciable	Plaintiffs argued genocide and war‑crime definitions provide judicially manageable standards under the ATS	Defendants argued such findings would interfere with foreign policy and risk inter‑branch conflict	Court held genocide and law‑of‑nations claims present judicially manageable legal questions under ATS and are not jurisdiction‑stripping political questions; case remanded for further proceedings

Key Cases Cited

Baker v. Carr, 369 U.S. 186 (establishing six‑factor political question test)
Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (treating political question doctrine as jurisdictional)
Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (recognizing certain foreign‑policy status questions are for political branches)
Sosa v. Alvarez‑Machain, 542 U.S. 692 (ATS permits limited law‑of‑nations claims and requires judicially manageable standards)
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (jurisdictional limits govern courts’ power to decide)
El‑Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir.) (discussing political question analysis in foreign‑relations context)
Simon v. Republic of Hungary, 812 F.3d 127 (D.C. Cir.) (recognizing genocide as law‑of‑nations violation for ATS jurisdiction)
Starr Int’l Co. v. United States, 910 F.3d 527 (D.C. Cir.) (standard of de novo review for political question determinations)