Schermerhorn v. State of Israel
235 F. Supp. 3d 249
D.D.C.2017Background
- Plaintiffs (four individuals, including U.S. nationals) were passengers on the U.S.-flagged Challenger I, part of the May 31, 2010 Gaza Freedom Flotilla, and allege Israeli Defense Forces boarded the vessel in international waters and committed violence and property seizure.
- Plaintiffs filed a nine-count complaint against the State of Israel and several Israeli ministries asserting war-crime-based international-law counts (torture, cruel and inhuman treatment, mutilation/maiming, intentionally causing serious bodily injury) and common-law torts (arbitrary arrest/detention, false imprisonment, assault and battery, intentional infliction of emotional distress, conversion).
- Defendants moved to dismiss under Federal Rules 12(b)(1), 12(b)(2), and 12(b)(6), principally arguing sovereign immunity under the Foreign Sovereign Immunities Act (FSIA).
- Plaintiffs invoked two FSIA exceptions as bases for jurisdiction: the non-commercial tort exception (28 U.S.C. § 1605(a)(5)) and the terrorism exception (28 U.S.C. § 1605A).
- The United States filed a Statement of Interest supporting dismissal on FSIA grounds; the Court considered statutory text and precedent and declined to reach merits or political-question/act-of-state arguments.
- The Court dismissed the complaint with prejudice for lack of subject-matter jurisdiction because neither FSIA exception applied: (1) torts occurring on a U.S.-flagged vessel in international waters are not "in the United States" for § 1605(a)(5); (2) Israel is not designated a state sponsor of terrorism, so § 1605A does not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FSIA non-commercial tort exception waives Israel's immunity | Challenger I was U.S.-flagged so torts occurred "in the United States" under § 1605(a)(5) | A tort on a U.S.-flagged vessel in international waters is not "in the United States"; FSIA limits "United States" to territorial U.S. and possessions | Held: Exception does not apply; alleged torts occurred outside the U.S., so immunity stands |
| Whether FSIA terrorism exception (§ 1605A) waives immunity for alleged torture | § 1605A should be read without requiring prior Secretary of State designation; exception can apply even to non‑designated states | § 1605A requires that the foreign state be designated a "state sponsor of terrorism" at time of act (or designated as a result of it) | Held: Exception inapplicable because Israel has never been designated a state sponsor of terrorism |
| Appropriate jurisdictional standard for FSIA exceptions at motion to dismiss | Plaintiffs urged a relaxed "non-frivolous" standard (de Csepel) where jurisdictional inquiry mirrors merits | Defendants: apply usual jurisdictional pleading standard where jurisdictional elements are distinct from merits | Held: Usual jurisdictional standard applies here because the disputed jurisdictional elements do not overlap the merits elements |
| Whether Court should reach other defenses (political question, act of state, forum non conveniens, or merits) | Plaintiffs urged merits and other defenses need not block jurisdiction | Defendants presented alternative doctrinal and merits defenses | Held: Court declined to reach these issues after resolving lack of FSIA waiver; dismissed for lack of subject-matter jurisdiction |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (recognition that federal courts are courts of limited jurisdiction)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (plaintiff bears burden to establish jurisdiction)
- Saudi Arabia v. Nelson, 507 U.S. 349 (FSIA establishes presumptive immunity absent statutory exception)
- Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (threshold requirement to identify applicable FSIA exception)
- OBB Personenverkehr AG v. Sachs, 136 S. Ct. 390 (FSIA exceptions are the sole basis for jurisdiction over foreign states)
- Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir. reasoning that U.S. embassy grounds in foreign state are not "in the United States" for FSIA)
- Simon v. Republic of Hungary, 812 F.3d 127 (distinguishing when "non-frivolous" standard applies where jurisdiction mirrors merits)
- Amerada Hess Shipping Corp. v. Argentine Republic, 488 U.S. 428 (Congress intended § 1605(a)(5) to reach torts committed in the U.S., not broadly elsewhere)
- Bank Markazi v. Peterson, 136 S. Ct. 1310 (contextual discussion of terrorism exception; Court rejects plaintiffs' expansive reading of that decision)