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BITON v. THE PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY

August 22, 2005.

AVIGAIL LEWIS BITON, et al., Plaintiffs,
v.
THE PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY, et al., Defendants.



The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge

MEMORANDUM OPINION

Avigail Lewis Biton, individually and on behalf of her children, and Rachel Asraf bring suit under the Antiterrorism Act of 1991 ("ATA"), 18 U.S.C. § 2333, and various tort theories against the Palestinian Interim Self-Government Authority, also known as the Palestinian Authority or the Palestinian National Authority ("PA") and the Palestine Liberation Organization ("PLO").*fn1 Pending before the Court are Defendants' Supplemental Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and Plaintiffs' Motion for Partial Summary Judgment.*fn2 By Order entered on April 18, 2005, the Court deemed the record closed. I. BACKGROUND

The underlying facts of this case may be simply stated: at approximately 7:30 a.m. on November 20, 2000, a roadside device exploded near a bus that was transporting elementary school children and their teachers from Kfar Darom, a former Israeli settlement in the southern Gaza Strip, toward Gush Katif. The bombing took the life of Plaintiff Biton's husband, Gabriel Biton, and injured Plaintiff Rachel Asraf. Plaintiffs contend that Defendants are responsible for this bombing and the resulting deaths and injuries. The bombing is believed by the Defendants to have been part of the "al-Aqsa Intifada," a series of violent demonstrations and clashes between Palestinians and Israeli Defense Forces that ensued following (now-Israeli Prime Minister) Ariel Sharon's controversial visit to the Temple Mount/Haram al-Sharif in Jerusalem in September 2000. See Defendants' First Motion to Dismiss ("Defs.' Mem."), Ex. 1.

  The Defendants' Supplemental Motion to Dismiss seeks dismissal on grounds of sovereign and governmental immunity based on Palestine's asserted statehood and Defendants' roles as "essential core elements of Palestine." Defendants' PA and PLO Supporting Memorandum of Points and Authorities in Support of Their Supplemental Rule 12(b) Motion ("Defs.' Supp. Mem.") at 1-2. They also argue that this action raises nonjusticiable questions and that the school bus bombing was an "act of war" as defined in 18 U.S.C. § 2331 and therefore the suit is barred by 18 U.S.C. § 2336(a). Although the Plaintiffs styled their pleading a "Motion for Partial Summary Judgment," it directly addresses each of the points raised in Defendants' Supplemental Motion to Dismiss and will be treated as a formal response to which the Defendants have filed no reply. II. LEGAL STANDARDS

  Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, which governs motions to dismiss for lack of subject matter jurisdiction, Plaintiffs bear the burden of establishing by a preponderance of the evidence that the Court possesses jurisdiction. See Shekoyan v. Sibley Int'l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002); Pitney Bowes, Inc. v. USPS, 27 F. Supp. 2d 15, 19 (D.D.C. 1998). It is well established that, in deciding a motion to dismiss for lack of subject matter jurisdiction, a court is not limited to the allegations set forth in the complaint, "but may also consider material outside of the pleadings in its effort to determine whether the court has jurisdiction in the case." Alliance for Democracy v. Fed. Election Comm'n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005); see Lockamy v. Truesdale, 182 F. Supp. 2d 26, 30-31 (D.D.C. 2001).

  Conversely, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face, testing whether the plaintiffs have properly stated a claim. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Plaintiffs need not plead the elements of a prima facie case in the complaint. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). In deciding a 12(b)(6) motion, the Court "may only consider 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) (citation omitted). Defendants' Supplemental Motion to Dismiss relies on both Rules 12(b)(1) and 12(b)(6).

  III. ANALYSIS

  A. Sovereign Immunity

  The PA and PLO seek dismissal on the grounds that they both meet the definition of "foreign state" under the Foreign Sovereign Immunity Act ("FSIA"), 28 U.S.C. § 1604 and/or under 18 U.S.C. § 2337, and are therefore immune from suit. The instant litigation is only one of at least five lawsuits against the PA and PLO in which these Defendants have raised the same issues of fact and law with respect to Palestinian statehood, sovereignty and immunity. Two of the other suits have reached the point of decision: Ungar v. Palestine Liberation Organization, 402 F.3d 274 (1st Cir. 2005); Knox v. Palestine Liberation Organization, 306 F. Supp. 2d 424 (S.D.N.Y. 2004).*fn3 In both cases, after thorough consideration and discussion, the court rejected Palestine's claims of statehood. Plaintiffs argue that the doctrine of collateral estoppel precludes Defendants from re-litigating their immunity claims here. The Court agrees.

  Under the doctrine of collateral estoppel,
[A] final judgment on the merits in a prior suit precludes subsequent relitigation of issues actually litigated and determined in the prior suit, regardless of whether the subsequent suit is based on the same cause of action.
Next Wave Pers. Communications, Inc. v. FCC, 254 F.3d 130, 147 (D.C. Cir. 2001) (internal citation and quotation marks omitted), aff'd, 537 U.S. 293 (2003). The purposes of collateral estoppel are to save a party from the burden of litigating an issue that the opponent has already lost, save the court system the burden of deciding the same issue repeatedly, and increase respect for judicial determinations by avoiding inconsistent results. Southern Pacific v. AT&T, 740 F.2d 1011, 1019 (D.C. Cir. 1984). The doctrine applies when:
(I) the issue previously adjudicated is identical with that now present, (ii) that issue was actually litigated in the prior case, (iii) the previous determination of that issue was necessary to the end-decision then made, and (iv) the party precluded was fully represented in the prior action.
Thomas v. General Services Admin., 794 F.2d 661, 664 (Fed. Cir. 1986) (internal quotations omitted). There can be little doubt that the decisions in Ungar and Knox should be accorded full preclusive effect. In each, the District Court*fn4 fully and carefully examined the question of Palestine's statehood and reached an extremely persuasive conclusion that Palestine is not a state; the First Circuit's decision is equally meticulous and persuasive on the point. See Restatement (Second) of Judgments § 13 ("for purposes of issue preclusion . . . `final judgment' includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect."). Should Defendants wish to pursue the question, they can appeal Ungar to the Supreme Court; starting over again in this Court, however, is not appropriate. See Rimsat Ltd. v. Hilliard, 207 B.R. 964 (D.D.C. 1997).

  Defendants acknowledge that each of these actions [Ungar, Knox, Biton, Gilmore, Shatsky] raises the same issues of fact and law concerning the statehood of Palestine and the immunity of the PLO and PA. See Memorandum of Defendants PA and PLO In Support of Their Motion for Limited Reconsideration Upon a Supplemented Record ("Memo for Reconsideration") at 1. In fact, the evidence submitted by Defendants in conjunction with their Supplemental Motion in this litigation consists entirely of the same Affidavit of Nasser Al-Kidway dated June 13, 2003, and attached exhibits, upon which they relied in Ungar. Memo for Reconsideration at 3-4. Defendants have not rebutted any of the Plaintiffs' arguments in this regard and the Court deems the matter conceded.

  Because collateral estoppel precludes re-litigation of the issues surrounding Palestine's asserted statehood, summary judgment on this claim will be granted to the Plaintiffs.

  B. Justiciability

  Defendants argue that the Court would be required "to assess the Israeli-Palestinian conflict and the illegality of Israel's oppressive actions in its occupation of the West Bank and Gaza" to determine whether their alleged actions constitute "international terrorism" under the ATA. Defs.' Mem. at 13. They continue,
The context provided by the Israeli-Palestinian conflict would include the many factors that govern the motivation and intent with which defendants' [sic] allegedly acted. . . . These factors include defendants' need to address and take into account the continuing oppression, poverty, malnutrition and humiliation of the Palestinian people, Israel's violation of the Palestinian people's human rights by excessive military force and other means, and relative ...

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