David SCHERMERHORN, et al., Plaintiffs, v. State of ISRAEL, et al., Defendants.
Civil Action No. 16-0049 (ABJ)
United States District Court, District of Columbia.
January 25, 2017
AMY BERMAN JACKSON, United States District Judge
John B. Bellinger, III, Robert Adam DeRise, Robert Neil Weiner, Arnold & Porter Kay Scholer LLP, Washington, DC, Robert Reeves Anderson, Arnold & Porter LLP, Denver, CO, for Defendants.
MEMORANDUM OPINION
Plaintiffs David Schermerhorn, Mary Ann Wright, Huwaida Arraf, and Margriet Deknopper have sued the State of Israel, and its Ministries of Defense, Foreign Affairs, Justice, and Public Security. On May 31, 2010, plaintiffs were passengers on the Challenger I, one of a group of ships seeking to draw public attention to, and to penetrate, the Israeli naval blockade of the Gaza Strip that was in effect at the time. They seek redress for the physical and emotional injuries that they allege they suffered when the Israeli military boarded their ship in international waters. See Compl. [Dkt. # 1] ¶¶ 1-2, 7, 22-23, 26.
Plaintiffs allege that Israel‘s actions constituted war crimes in violation of international law, and their complaint includes four counts based on that theory: Torture (Count 1), Cruel and Inhuman Treatment (Count 2), Mutilation or Maiming (Count
Israel is a foreign sovereign. Like any other country, it may only be sued in courts in the United States under certain limited circumstances defined by statute.1 Israel maintains that there has been no waiver of its sovereign immunity that could make this case possible, and it has moved to dismiss on that ground and others under
BACKGROUND
This case arises out of the history of the troubled relationship of the Israelis and the Palestinians, a complex and controversial subject that is not well suited to the sort of summarization that one would include in the “background” section of a legal opinion. Suffice it to say that the events described in the complaint relate to the ongoing dispute concerning the disposition of the Gaza Strip in the wake of the 1967 Six Day War, the creation of the Palestinian Authority in 1994, and the series of violent conflicts and fragile ceasefires that followed.2
Plaintiffs were a part of what was called the “Gaza Freedom Flotilla,” which aimed “to draw international public attention to the situation in the Gaza Strip and the effect of the blockade, to break the blockade, and to deliver humanitarian assistance and supplies to Gaza.” Compl. ¶ 24. The flotilla consisted of six vessels: the M.V. Mavi Marmara, a passenger ship sailing under the flag of the Union of Comoros; the M.V. Defne Y, a cargo vessel sailing under the flag of the Republic of Kiribati; the M.V. Gazze, a cargo vessel sailing under the flag of the Republic of Turkey; the M.V. Sfendoni, a passenger ship sailing under the flag of the Hellenic Republic of Greece; and the Challenger I, a passenger ship sailing under the flag of the United States of America. Compl. ¶ 25. Plaintiffs allege that on May 31, 2010, the IDF “unlawfully intercepted and attacked” the six vessels. Compl. ¶ 2. Since the claims in this case relate solely to the events that took place on the Challenger I, the Court
The Challenger I carried seventeen passengers, including crew; they were American, British, Irish, Australian, Dutch, Belgian, and Polish nationals who worked as humanitarian workers, medics, and journalists. Compl. ¶ 29. According to plaintiffs, the vessel was carrying humanitarian aid, including medical equipment and supplies, in addition to “a large amount of media equipment” such as video cameras, recorders, phones, and GPS locators. Id. ¶ 30.3 Plaintiffs allege that all of the individuals on the flotilla, including those on the Challenger I, were “subject to security checks for weapons before departure,” and that “[a]ll of the passengers and crew . . . were unarmed during their entire journey.” Id. ¶¶ 26, 31.
On May 31, 2010, as the flotilla approached the shore, the Israeli navy took action to enforce the blockade of the Gaza Strip and board the vessels.4 According to the complaint, the boarding of the Challenger I was marked by violence. See Compl. ¶¶ 41-46. Plaintiffs allege that “at least one stun grenade was used before the IDF soldiers sought to board” the ship. Id. ¶ 41. “The grenade exploded one foot from Plaintiff Schermerhorn‘s face, leaving him partly blinded in one eye.” Id. The complaint states that the soldiers fired paintball and rubber bullets directly at the passengers while they were boarding the vessel; plaintiff Deknopper was shot in the face with a rubber bullet that broke her nose, and another passenger was shot five times in the back with rubber bullets. Id. ¶ 42. Once onboard, the soldiers detained all of the passengers. Id. ¶ 43. Plaintiff Arraf alleges that he was “forcefully pulled off the stairs and forced to the deck,” where a soldier “slammed [his head] against the deck” and stood on it. Id. Plaintiff Arraf and another passenger were “forced to kneel with tight handcuffs while hooded for an extended period of time, despite complaining of breathing difficulties.” Id.
After the Israelis took control of the Challenger I, they directed the ship to the Israeli port of Ashdod. Compl. ¶ 38. Plaintiffs allege that while on route to Ashdod, they were assaulted, handcuffed, and forcibly detained; that they were denied toilets and medical care; and that their personal property, including “all media equipment and film footage,” was confiscated and never returned. Id. ¶ 45. When the Challenger I arrived in Ashdod, “[s]everal passengers, including Plaintiff Wright[,] were treated violently when they refused to leave the ship.” Id. ¶ 46.
On January 11, 2016, plaintiffs filed this nine-count action against the State of Israel and its Ministries of Defense, Foreign Affairs, Justice, and Public Security. Compl. Count 1, brought by plaintiffs Arraf and Deknopper, alleges that defendants committed the war crime of torture when they banged plaintiff Arraf‘s head against the deck, stood on her head, hood-
Defendants moved to dismiss on August 8, 2016. Defs.’ Mot.; Defs.’ Mem. They argue principally that the Court lacks jurisdiction because Israel and its ministries are immune from suit under the FSIA, Defs.’ Mem. at 12-28, and that even if Israel were not immune, the Court lacks jurisdiction under the political question doctrine and the act of state doctrine. Id. at 28-37. They also argue that each count in the complaint fails to state a claim under
On November 21, 2016, the United States submitted a Statement of Interest in this case pursuant to
STANDARD OF REVIEW
Before the Court may turn to the merits of plaintiffs’ allegations, it must first ensure that it has jurisdiction to hear this case.
Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree. It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (internal citations omitted). In addition, “[i]t is axiomatic that subject matter jurisdiction may not be waived, and that courts may raise the issue sua sponte.” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008), quoting Athens Cmty. Hosp., Inc. v. Schweiker, 686 F.2d 989, 992 (D.C. Cir. 1982). Indeed, a federal court must raise the issue because it is “forbidden—as a court of limited jurisdiction—from acting beyond [its]
Under
In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice.” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). When considering a motion to dismiss for lack of jurisdiction, however, the court “is not limited to the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, “a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat‘l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
ANALYSIS
Under the Foreign Sovereign Immunities Act, “a foreign state is presumptively immune from the jurisdiction of United States courts,” and “unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993); see
I. The applicable jurisdictional standard
Plaintiffs predicate their assertion of the Court‘s jurisdiction on two exceptions to the FSIA: the non-commercial tort exception,
Plaintiffs cite de Csepel v. Republic of Hungary, 169 F.Supp.3d 143 (D.D.C. 2016) for the proposition that, “[w]here, as here, the claims on the merits set out in the Complaint directly mirror the jurisdictional standard, Plaintiffs ‘need only show that [their] claim is “non-frivolous” at the jurisdictional stage and need not definitely prove [their] claim as [they] would at the merits stage.‘” Pls.’ Opp. at 7, quoting de Csepel, 169 F.Supp.3d at 156. But this case does not present the situation discussed in de Csepel, and a closer look at the case law reveals that the more lenient standard is not applicable in this case.
The court in de Csepel pointed to the D.C. Circuit‘s opinions in Simon v. Republic of Hungary, 812 F.3d at 141, and Helmerich & Payne International Drilling Co. v. Bolivarian Republic of Venezuela, 784 F.3d 804, 812 (D.C. Cir. 2015), when it noted that under certain circumstances, a lower standard of proof could apply at the jurisdictional stage.5 de Csepel, 169 F.Supp.3d at 156. In Simon, the court explained:
In prior FSIA cases involving the expropriation exception, this court has held that, in assessing whether “rights in property taken in violation of international law are in issue,” the plaintiff need only make a “non-frivolous” showing at the jurisdictional stage. That is because, in those cases, the plaintiff‘s claim on the merits directly mirrored the jurisdictional standard.
Simon, 812 F.3d at 140 (emphasis added), quoting
When, as here, the jurisdictional and merits inquiries do not overlap, there is no occasion to apply the “exceptionally low bar” of non-frivolousness at the jurisdictional stage. To establish jurisdiction in such a situation, we therefore ask for more than merely a non-frivolous argument. Instead, we assess whether the plaintiffs’ allegations satisfy the jurisdictional standard.
Id. at 141 (internal citations omitted). This admonition was repeated in de Csepel:
Thus, when facts independent of the necessary elements of a plaintiff‘s substantive cause of action must be established, courts “ask for more than a non-frivolous argument.”
169 F.Supp.3d at 156, quoting Simon, 812 F.3d at 141.
II. Because the alleged torts did not occur within the United States, the non-commercial tort exception does not apply.
Plaintiffs contend first that the Court may exercise jurisdiction over each count in the complaint under the non-commercial tort exception to the FSIA. See Compl. ¶ 80. That exception provides:
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . 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 . . . .
“Congress’ primary purpose in enacting § 1605(a)(5) was to eliminate a for-
Plaintiffs maintain that a vessel flying the American flag falls within this definition, Pls.’ Opp. at 9-16, but their argument does not accord with the law in this circuit. In Persinger v. Islamic Republic of Iran, 729 F.2d 835, 837-39 (D.C. Cir. 1984), the D.C. Circuit addressed whether a claim against Iran arising out of the hostage crisis at the American embassy in Tehran could be heard in a United States court under the non-commercial tort exception. The D.C. Circuit explained that the statutory definition of “United States” that appears in
Congress used the words “continental or insular” to modify the scope of the phrase “all territory and waters . . . subject to the jurisdiction of the United States.” The latter phrase, if it stood alone, might lead to the conclusion that any territory over which the United States exercises any form of jurisdiction constitutes the “United States” for purposes of the FSIA. Since the United States has some jurisdiction over its embassy in Iran, it would then follow that Iran had no immunity for tortious acts committed on the Embassy grounds. We think, however, that the modifying words make this construction too awkward to be countenanced. If the definition meant all territory subject to any form of United States jurisdiction, the words “continental or insular” would be surplusage: all territory is continental or insular. The modifying phrase is rather clearly intended to restrict the definition of the United States to the continental United States and such islands that are part of the United States or are its possessions.
Id. at 839. Because “[t]he ground upon which our Embassy stands in Tehran does not fall within [the statutory] definition,” the Court concluded that “Iran enjoy[ed] sovereign immunity” in that case. Id. at 837.
Applying this reasoning, the definition of “in the United States” would not include an American vessel in international waters. Plaintiffs attempt to distinguish Persinger by arguing that unlike an embassy, which is fixed within the territory of the receiving state, a flagged vessel is deemed to be within the territory of the country whose flag is flown onboard as a matter of inter-
While the “floating island” theory may be “a principle that antedates the Republic,” Pls.’ Opp. at 13, quoting United States v. Riker, 670 F.2d 987, 988 (11th Cir. 1982), the Supreme Court has explained that the theory “is a figure of speech, a metaphor,” and the Court has made clear that when the law uses the term “territory” in a “physical and not a metaphorical sense,” it is referring to “areas or districts having fixity of location and recognized boundaries.” Cunard S.S. Co. v. Mellon, 262 U.S. 100, 122-23, 43 S.Ct. 504, 67 L.Ed. 894 (1923) (holding that a U.S.-flagged vessel was not in the “territory” of the United States for purposes of the Eighteenth Amendment‘s prohibition on the sale of intoxicating liquors to or from “territory subject to the jurisdiction” of the United States).
The Second Circuit rejected reasoning similar to that advanced by the plaintiffs in Smith v. Socialist People‘s Libyan Arab Jamahiriya, 101 F.3d 239 (2d Cir. 1996). The plaintiffs in Smith, the families of a group of passengers and employees aboard Pan Am Flight 103, sued Libya for its alleged complicity in the bombing of that flight over Lockerbie, Scotland. Id. at 241. Their theory was that “Pan Am Flight 103 should be considered to have been ‘territory’ of the United States for purposes of the FSIA . . . rely[ing] on the principle that a nautical vessel ‘is deemed to be a part of the territory’ of ‘the sovereignty whose flag it flies.‘” Id. at 246, quoting United States v. Flores, 289 U.S. 137, 155, 53 S.Ct. 580, 77 L.Ed. 1086 (1933). The Second Circuit disagreed and explained:
Even if we assume, without deciding, that for some purposes an American flag aircraft is like an American flag vessel, the fact that a location is subject to an assertion of United States authority does not necessarily mean that it is the “territory” of the United States for purposes of the FSIA . . . . If FSIA immunity prevails in United States embassies, it cannot be displaced with respect to United States aircraft flying over a foreign land.
Id. at 246 (internal citation omitted).
So, even if the Court were to assume that the Challenger I could be considered subject to certain U.S. laws as a U.S.-flagged ship, it does not necessarily follow that the vessel is within the “territory” of the United States for purposes of the FSIA.
Therefore, the Court finds that the non-commercial tort exception does not apply, because a tort committed on a U.S.-flagged vessel in international waters is not committed “in the United States” for purposes of the FSIA. So Count 1—to the extent that it is premised on the non-commercial tort exception—and the remaining counts, will be dismissed for lack of subject matter jurisdiction.
III. Because Israel has not been designated as a “state sponsor of terrorism,” the terrorism exception does not apply.
Plaintiffs Arraf and Deknopper maintain that the Court has jurisdiction under the terrorism exception,
in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting in the scope of his or her office, employment or agency.
The FSIA specifies the conditions under which the terrorism exception may be invoked. A court “shall hear a claim” if three conditions are satisfied: (1) “the foreign state was designated as a state sponsor of terrorism at the time the act . . . occurred, or was so designated as a result of the act;” (2) “the claimant or the victim was, at the time the act . . . occurred,” a U.S. national, a member of the armed forces, an employee of the United States government, or a U.S. government contractor acting within the scope of the contractor‘s employment; and (3) “in a case in which the act occurred in the foreign state against which the claim has been brought, the claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the accepted international rules of arbitration.” Id.
With respect to the first requirement, the statute defines the term “state sponsor of terrorism” to mean:
[A] country the government of which the Secretary of State has determined, for purposes of section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. § 2371), section 40 of the Arms Export Control Act (22 U.S.C. § 2780), or any other provision of law, is a government that has repeatedly provided support for acts of international terrorism.
Plaintiffs recognize that Israel is not on the list, but they point to the legislative history of the current version of the exception and argue that the designation is not a necessary precondition to the abrogation of sovereign immunity. See Pls.’ Opp. at 22-25. The previous version of the terrorism exception provided:
[T]he court shall decline to hear a claim under this paragraph—(A) if the foreign state was not designated as a state sponsor of terrorism . . . at the time the act occurred, unless later so designated as a result of such act.
Antiterrorism & Effective Death Penalty Act of 1996, § 221, Pub. L. No. 104-132, 110 Stat 1214 (1996), codified at
But the D.C. Circuit has grappled with the new language, and it observed that former section 1605(a)(7) “is materially identical to current section 1605A.” Weinstein v. Islamic Republic of Iran, 831 F.3d 470, 482 n.22 (D.C. Cir. 2016). And the D.C. Circuit has joined its sister circuits around the country in concluding that any assertion of immunity based on
And in any event, plaintiffs misread the statute as a whole. The Court must begin with the presumption that Israel is immune from suit.
CONCLUSION
For the foregoing reasons, the Court concludes that there has been no waiver of sovereign immunity that would enable the
AMY BERMAN JACKSON
United States District Judge