United States District Court, D. Columbia
August 22, 2005.
AVIGAIL LEWIS BITON, et al., Plaintiffs,
THE PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY, et al., Defendants.
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).
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
(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
relative popular support of the people from time to
time for the Palestinian government, militant
factions and violence all of which are directly
affected by Israel's oppressive and illegal conduct.
Id. p. 17.
Section 2331 of the ATA defines "international terrorism"
actionable under § 2333 as activities that "appear to be intended
. . . to intimidate or coerce a civilian population [or] to
influence the policy of a government by intimidation or
coercion." 18 U.S.C. § 2331. This Court has previously ruled that
the question of whether Defendants' intention met the requisite element of apparent intent under § 2331 "is a disputed
question of material fact," and that, "[o]n a motion to dismiss,
the Court will not determine the [D]efendants' intent in
allegedly committing the bus bombing." Biton,
310 F. Supp. 2d at 185. The same result pertains here. Whether presented as an
argument concerning "apparent intent" or "nonjusticiability,"
Defendants misperceive the status of the case. Plaintiffs
complain that Defendants' actions caused them injury; while the
ATA provides jurisdiction for the suit in federal court, the
basic elements of the claim lie in tort, not in the relations
between Palestine and Israel.
Defendants argue that this Court is the wrong forum to explore
and evaluate the alleged "oppression" of Palestinians by Israel
and the validity of Palestinian efforts to establish their own
government through force; in other words, the Israeli-Palestinian
conflict raises political questions beyond the purview of a
United States District Court. In Baker v. Carr, 369 U.S. 186
(1962), the Supreme Court identified six factors to distinguish a
political question that is nonjusticiable:
 a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or  a lack of judicially discoverable
and manageable standards for resolving it; or  the
impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial
discretion; or  the impossibility of a court's
undertaking independent resolution without expressing
lack of the respect due coordinate branches of
government; or  an unusual need for unquestioning
adherence to a political decision already made; or
 the potentiality of embarrassment from
multifarious pronouncements by various departments on
Id. at 217; see Ungar, 402 F.3d at 280. The First Circuit
again leads the way with its analysis. "This is a tort suit
brought under a legislative scheme that Congress enacted for the
express purpose of providing a legal remedy for injuries or death
occasioned by acts of international terrorism." Ungar, 402 F.3d at 280. There is no flaw in this
Court's ability to address Plaintiffs' claims: Congress
explicitly committed these issues to the federal courts under the
ATA. Similarly, the Court has access to "judicially manageable
standards for resolving the issue[s] before it," id., from both
existing ATA caselaw and traditional tort caselaw. The "initial
policy determination" involved here has already been made by the
U.S. Congress: Americans injured by terrorist acts can sue their
attackers in U.S. courts and the Court can manage this case to
resolution of Defendants' alleged liability without "expressing
lack of the respect due coordinate branches of government."
Baker, 369 U.S. at 217. The fifth and sixth factors from Baker
v. Carr do not apply because a decision in this individual case
will have no consequences concerning "political decision[s]
already made" and will raise only the question of Defendants'
alleged liability regarding this single bombing of a bus. Thus,
nothing in Baker v. Carr counsels against having this case
Finding that this case does not present claims that are not
justiciable, the Court will deny Defendants' Supplemental Motion
to Dismiss on this basis.
C. "Act of War"
The more complex question is whether the alleged actions of
Defendants are not subject to litigation in a U.S. court because
they were "acts of war" over which the ATA does not extend
jurisdiction. 18 U.S.C. § 2336(a) provides that "[n]o action
shall be maintained under section 2333 of this title for injury
or loss by reason of an act of war." "Act of war" is defined in §
2331 as "any act occurring in the course of (A) declared war;
(B) armed conflict, whether or not war has been declared, between
two or more nations; or (C) armed conflict between military
forces of any origin." Defendants limit their arguments to (C),
asserting that the bombing of the school bus was an act of war occurring in the course of armed
conflict between military forces of any origin.*fn5
Plaintiffs contend that attacks against civilians are not
countenanced in U.S. law as "acts of war" that would allow
terrorists to escape the judgment for which the ATA was adopted.
Plaintiffs urge the Court to decide, as a matter of law, that
bombing civilian targets is not an action that occurs "in the
course of" war, as that term is construed by U.S. courts.
The parties do not dispute that there was an "armed conflict"
in the southern Gaza Strip in November 2000, as the nightly news
also demonstrated to Americans during that time.
There was armed conflict between military forces in
Gaza and other occupied Palestinian [areas] at all
The armed conflict is shown on this motion by
numerous newspaper articles reporting on day-to-day
fighting and violence as it occurred, often
characterizing the conflict as war or reporting
remarks to this effect by Israelis or Palestinians.
Many such articles are included in defendants'
exhibits on this motion. . . .
Israel has repeatedly and consistently reported the
fighting between the IDF and Palestinians to be armed
conflict, and, at times, armed conflict short of war.
The latter would of course be within the statutory
definition of `act of war.'
Defs.' Supp. Mem. at 20. However, while Plaintiffs do not dispute
that there was an "armed conflict" as a matter of fact, they
disagree as to whether an "armed conflict" existed as a matter of
law for purposes of the ATA. Memorandum in Support of Plaintiffs'
Motion for Partial Summary Judgment Against Defendants Palestinian Authority and
Palestine Liberation Organization ("Pls.' Mem.") at 24
("[A]ttacks on civilians are excluded as a matter of law from
being considered part of an armed conflict even when they are a
part of such conflict as a matter of fact.").
1. Applying the Phrase "In the Course of"
Plaintiffs' argument begins with the accurate statement that
"[u]nder § 2331(4), `acts of war' include only acts `occurring in
the course of' declared war or armed conflict." Pls.' Mem. at 16.
While there appears to be no precedent interpreting § 2331(4),
[I]n numerous other contexts, the courts have
consistently interpreted the phrase "in the course
of" as a "gatekeeper" phrase that is intended to
exclude as a matter of law a subset of conduct
which because of its nature and substance
deviates from and/or is insufficiently related to the
general set of conduct governed by the provision in
Id. at 17 (emphasis in original). The Controlled Substances Act
prohibits the distribution of narcotics, 21 U.S.C. § 829, except,
inter alia, by a licensed "practitioner" as defined, including
doctors who dispense "a controlled substance in the course of
professional practice. . . ." 21 U.S.C. § 802(21). "Manifestly
the language `in the course of professional practice' is intended
to limit the immunity of a licensed practitioner . . . [who] is
expected to prescribe or dispense drugs within the bounds of his
professional practice of medicine." United States v. Collier,
478 F.2d 268
, 272 (5th Cir. 1973). "[T]he phrase `in the course
of professional practice' . . . has been in the statute books
since 1914. . . . The language clearly means that a doctor is not
exempt from the statute when he takes actions that he does not in
good faith believe are for legitimate medical purposes." United
States v. Rosenberg, 515 F.2d 190
, 197-198 (9th Cir. 1975)
(citing Jim Fuey Moy v. United States, 254 U.S. 189
, 194 (1920)
(doctor must act "strictly within the appropriate bounds of a physician's professional practice"); United States
v. Behrman, 258 U.S. 280
, 287 (1922) (immunity confined to
dispensing narcotics in "the regular and lawful course of
professional practice"); Boyd v. United States, 271 U.S. 104
105 (1926) ("good faith in the course of his professional
Similarly, the protections afforded a seaman under the Jones
Act, 46 App. U.S.C.A. § 688, are limited to recovery for injury
or death suffered "in the course of his employment." This phrase
refers to "the nature of the service and its relationship to the
operation of the vessel plying in navigable waters" that led to
injury or death, not the physical location of the seaman when
injured. O'Donnell v. Great Lakes Dredge & Dock Co.,
318 U.S. 36 (1943); see also Vincent v. Harvey Well Service,
441 F.2d 146, 147 (5th Cir. 1971); Magnolia Towing Co. v. Pace,
378 F.2d 12 (5th Cir. 1967). As a result, the question of whether a given
injury occurred "in the course of" a seaman's employment is
primarily a question of law, not fact. Colon v. Apex Marine
Corp., 832 F. Supp. 508, 515 (D.R.I. 1993), aff'd, 35 F.3d 16
(1st Cir. 1994), cert. denied, 514 U.S. 1018 (1995).
The Warsaw Convention (reprinted following 49 U.S.C. § 40105),
an international treaty governing air carrier liability, also
contains the phrase "in the course of" which has been interpreted
by U.S. courts in a limiting fashion. Specifically, Article 17 of
the Convention provides that an air carrier:
[S]hall be liable for damages sustained in the event
of the death or wounding of a passenger or any other
bodily injury suffered by a passenger if the accident
which caused the damage so sustained took place on
board the aircraft or in the course of any of the
operations of embarking or disembarking.
Id. (emphasis added). As with the interpretations of the same
phrase in the Jones Act, courts look to the nature of the passenger's activity, under whose control or
direction the passenger was acting, and the location of the
passenger's activity to determine whether the damage or injury
occurred "in the course of" embarking or disembarking. Day v.
Trans World Airlines, Inc., 528 F.2d 31
(2d Cir. 1975); see
also Dazo v. Globe Airport Security Services, 268 F.3d 671
(9th Cir. 2001); Kalantar v. Lufthansa German Airlines,
276 F. Supp. 2d 5 (D.D.C. 2003). "Location should not be considered
alone . . . when determining if plaintiff was in the course of
embarking upon defendant's flight. In addition to the location of
the accident, the nature of the activity in which the plaintiff
was engaged must be examined to determine if that activity can
fairly be considered part of `the operations of embarking.'" Abu
Hamdeh v. American Airlines, Inc., 862 F. Supp. 243, 248 (E.D.
Mo. 1994) (quoting Evangelinos v. Trans World Airlines, Inc.,
550 F.2d 152
, 155 (3rd Cir. 1977)).
From these precedents, Plaintiffs argue that the phrase "in the
course of" armed combat excludes from its scope an attack on a
civilian bus because such an attack on civilians violates the
rules of war and cannot occur "in the course of" war as a matter
2. Rules of War
Although Rules of War and the carnage of battle appear to be
incongruous, attacks on civilian noncombatants have been reviled
for centuries. In Henry II, Shakespeare will not let us forget
the French attack on the English baggage boys at Agincourt. Many
still remember the American revulsion to the My Lai massacre
during the Vietnam War, even as we sympathized with the soldiers
facing a hidden enemy. Plaintiffs build on this tradition to
argue that the November 20, 2000, attack on the school bus from
Kfar Darom violated the Rules of War and could not, as a matter
of law, come within the exception to the ATA. Plaintiffs turn to the "political offense exception" to
extradition to make their point. "Most [extradition] treaties
list categories of crimes or specific offense[s] for which
extradition may be requested. There usually are, however,
exceptions. . . . Many treaties include `political crimes' among
those exceptions," without further defining the term. Fain v.
Wilkes, 642 F.2d 504, 512 (7th Cir. 1981), cert. denied,
454 U.S. 894 (1981). In developing a definition, U.S. courts have
limited "political crimes" to "acts committed in the course of
and incidental to a violent political disturbance such as a war,
revolution or rebellion." Id. at 518 (emphasis added). See
also Garcia-Guillern v. United States, 450 F.2d 1189, 1192 (5th
Cir. 1971), cert. denied, 405 U.S. 989 (1972) (offense must
occur "in the course of or incidental to" hostilities). Even more
to the point, the question for extradition purposes is not just
whether there was a war in fact, but whether the offense occurred
"in the course of and incidental to" that war, depending upon the
nature and circumstances of the violent act and the identity of
In determining whether the "incidental to" prong has
been met, federal courts have examined the
circumstances of the attack and the victims targeted.
See Ornelas v. Ruiz, 161 U.S. 502, 511 (1896)
(focusing on status of victim, "mode of attack," and
"the character of the foray"); Ahmad v. Wigen,
910 F.2d at 1066 (attack on civilian passenger bus was
not a political offense); Artukovic v. Rison,
628 F. Supp. 1370, 1376 (C.D. Cal. 1985) ("[T]he focus of
the inquiry is on the circumstances, and on the
status of those harmed." [aff'd 784 F.2d 1354 (9th
Marzook v. Christopher, 1996 WL 583378, at *2 (S.D.N.Y. Oct.
10, 1996). "A rational nexus between the alleged crimes and the
prevailing turmoil must be demonstrated. In searching for such a
connection, the focus of the inquiry is on the circumstances, and
on the status of those harmed, and not on whether the acts merely
were committed during the disorder." Artukovic,
628 F. Supp. at 1376. 3. Application to Bombing at Kfar Darom
Kfar Darom now evacuated by the Israelis was an Israeli
settlement in the southern Gaza Strip, an area originally
partitioned by the United Nations in 1947 to be under Palestinian
control. The U.N. "formulated a plan that involved the creation
of two independent states within the [former United Kingdom]
mandate territory: one Jewish, the other Arab." Ungar,
402 F.3d at 285. The Palestinians, representing two-thirds of the
population, refused to accept the idea of partition. Id. at
285. When the British withdrew, Jewish leaders announced the
establishment of the State of Israel within the borders set by
the United Nations; Arab forces immediately invaded. Id.
(citing United Nations Dep't of Pub. Info., The Question of
Palestine & The United Nations at 11, U.N. Doc. DPI/2276, U.N.
Sales No. 04, I.15 (2003)). When this first Arab-Israeli war
ended, "Egypt had taken control of the Gaza Strip, Jordan was in
control of the West Bank (including East Jerusalem), and Israel
had taken command of the remainder of the former mandate
territory." Id. By the end of the war, nearly three-quarters of
a million Palestinian refugees had fled from the areas controlled
by Israel. Id. Egypt, Jordan and Syria went to war against
Israel again in 1967. This conflict lasted six days, at the end
of which Israel occupied "the Gaza Strip and the West Bank, as
well as the Sinai peninsula (previously under Egyptian rule) and
the Golan Heights region of Syria." Id. Strenuous efforts to
establish a stable peace between Palestine and Israel within
separate national borders have progressed and retreated in the
years since 1967 without resolution.
This history is important because Kfar Darom was an Israeli
settlement in an area that was intended by the United Nations to
be under Palestinian control. The entire Gaza Strip is about
twice the size of Washington, D.C., yet its population in 2002
was approximately 1,300,000 Palestinians and 7,000 Israelis. The phenomena of small
Israeli towns established in occupied but presumptively
Palestinian territory has enormously complicated the peace
efforts. Encouraged by their government, Israeli settlers in the
Gaza Strip knowingly ventured into lands that the Palestinians
claim and that the United Nations partitioned in Palestinian
favor. It is not immediately obvious that an attack on a settler,
who intentionally went into Palestinian territory to claim it for
Israel, would automatically and necessarily be a "terrorist"
attack against a "civilian."
The Court does not have to venture a decision on this point.
Israel is withdrawing from the Gaza Strip and Kfar Darom is
evacuated. Nonetheless, it is clear that children are not the
proper targets of war. War should be fought between combatants
and not between combatants and children. Defendants do not
dispute that the bus from Kfar Darom contained only children and
teachers. The fact of the settlement at Kfar Darom might be the
cause of Palestinian anger; the settlement itself might even be
an object for attack by Palestinians and defense by Israeli
military, during which children might be hurt. But the children
of the settlement cannot be direct targets of Palestinian force
without liability as terrorists. The circumstances of the alleged
attack on a recognized school bus full of students and teachers
and the status of those noncombatants lead the Court to
conclude that the attack did not occur "during the course of" an
armed conflict as a matter of law. Accordingly, Defendants'
Supplemental Motion to Dismiss will be DENIED. A memorializing
order accompanies this memorandum opinion.
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