David Schermerhorn v. State of Israel
876 F.3d 351
D.C. Cir.2017Background
- Plaintiffs (three U.S. citizens and one foreign national) sailed on the U.S.-flagged vessel Challenger I as part of the Gaza Freedom Flotilla; they allege Israeli forces attacked and detained them in international waters, causing injury and asserting tort claims.
- Plaintiffs sued Israel and Israeli ministries in D.D.C.; Israel moved to dismiss under Fed. R. Civ. P. 12(b)(1) asserting FSIA sovereign immunity.
- Plaintiffs invoked two FSIA exceptions to immunity: the non-commercial torts exception (28 U.S.C. §1605(a)(5)) and the terrorism exception (28 U.S.C. §1605A after amendment).
- Central legal contests: whether an injury aboard a U.S.-flagged ship on the high seas qualifies as occurring "in the United States" under §1605(a)(5); and whether §1605A permits suits against states not designated as state sponsors of terrorism.
- The district court dismissed for lack of jurisdiction; the D.C. Circuit reviews de novo and affirms dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether torts aboard a U.S.-flagged ship in international waters "occurred in the United States" under the FSIA non-commercial torts exception | A U.S.-flagged ship is constructively part of the United States; §1603(c)’s use of "includes" permits including U.S.-flagged vessels | FSIA's definition is limited by "continental and insular" modifier and FSIA precedent; U.S.-flagged ships on high seas are not territory of the U.S. for §1605(a)(5) | Held: No — the FSIA’s "United States" is geographically limited; non-commercial torts exception does not apply to U.S.-flagged ships on the high seas |
| Whether the FSIA terrorism exception (§1605A) permits suits against states not designated as state sponsors of terrorism | The 2008 amendment separated sentences such that §1605A(a)(1) strips immunity generally for listed terrorist acts, so designation is not a jurisdictional prerequisite | The amendment did not eliminate the state-sponsor requirement; statutory context, FSIA's presumption of immunity, and legislative history preserve designation as a jurisdictional prerequisite | Held: No — §1605A still requires the defendant be a designated state sponsor of terrorism to invoke the exception; Plaintiffs cannot rely on §1605A here |
Key Cases Cited
- Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (Sup. Ct.) (construed FSIA’s geographic modifiers narrowly; excluded high seas from §1605(a)(5))
- Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir.) (held FSIA’s “United States” limited to continental and insular U.S.; embassy and foreign sites not covered)
- Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir.) (describes FSIA’s presumption of immunity and limited exceptions)
- Owens v. Republic of Sudan, 864 F.3d 751 (D.C. Cir.) (interprets §1605A as aimed at designated state sponsors and discusses scope of terrorism exception)
- Mohammadi v. Islamic Republic of Iran, 782 F.3d 9 (D.C. Cir.) (treats §1605A’s state-sponsor designation as a requirement to invoke the exception)