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