The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiffs Ali Mahmud Ali Shafi, his common-law wife, Shirin Ali Shafi, and his minor daughter, Lamia Ali Shafi, bring claims under the Alien Torts Statute ("ATS") and the Israeli Civil Wrongs Ordinance against the Palestinian Authority ("PA") and the Palestine Liberation Organization ("PLO"), alleging that the defendants violated the law of nations and Israeli law by abducting and torturing Ali.*fn1 The defendants move to dismiss, arguing, among other things, that the Torture Victims Protection Act ("TVPA") provides the sole cause of action for claims alleging torture under color of foreign law and, in the alternative, that the plaintiffs have failed to state a claim under the ATS. Although the TVPA does not preempt a common law cause of action for torture, the plaintiffs have failed to state an ATS claim upon which relief can be granted because their allegations of non-state torture are not recognized as violations of the law of nations. Supplemental jurisdiction over the plaintiffs' third party claims will be declined, and the defendants' motion to dismiss therefore will be granted.*fn2
The amended complaint alleges the following information. Ali lived in the West Bank Palestinian territory from 1948 to 1994, and, during a substantial period of that time, he served as an Israeli agent and confidential informant. (Am. Compl. ¶ 23.) In 1994, Ali relocated to the city of Haifa in Israel and stopped serving as an Israeli agent. (Id. ¶¶ 24, 25.) Widespread violence erupted in September 2000 between armed Palestinians and the Israeli army. "This wave of violence, which continued until 2005, is commonly referred to as the 'Intifada.'" (Id. ¶ 11.) "Palestinian agents and confidential informants enabled Israeli authorities to prevent or at least limit armed Intifada violence" and "defendants PA and PLO did all in their power to identify these Palestinian agents and confidential informants and put an end to their cooperation with Israeli authorities, and to deter other Palestinians from becoming agents and informers for Israel." (Id. ¶ 18.) In September 2001, Ali traveled with his then-girlfriend and his daughter to the West Bank to visit his mother. (Id. ¶ 26.) He alleges that during that visit, members of the PA's security services entered his mother's home in the middle of the night, demanding that Ali accompany them to their headquarters. (Id. ¶ 28.) At their headquarters, PA security officers, many of whom were also officers, employees, or agents of the PLO, accused Ali of being an Israeli informant. (Id. ¶¶ 30, 61.) Ali alleges that over the course of the next six months, the security officers interrogated him, beat him, whipped him with heavy metal cables, strapped his legs to a wooden bar and beat the soles of his feet until they swelled and bled, and poured hot salt water over his open wounds. (Id. ¶¶ 31-57.) His captors eventually abandoned him in the face of Israeli military activity in the area, and after his rescue, he returned to Haifa. (Id. ¶¶ 57-59.)
The plaintiffs bring two claims under the ATS, alleging that the torture "violated 'the law of nations'" because it occurred during an armed conflict and because it was carried out by public officials. They also bring a third-party claim on behalf of Lamia for negligence under the Israeli Civil Wrongs Ordinance. The defendants have moved to dismiss the complaint under Rule 12(b)(6), arguing that the TVPA preempts any common law torture claims under the ATS, and that even if it does not preempt those claims, the plaintiffs have not pled a violation of the law of nations.*fn3 The plaintiffs argue that they have stated a claim upon which relief can be granted because the TVPA does not provide the exclusive remedy for claims of torture, and that the allegations of torture constitute violations of the law of nations.
A party may move under Federal Rule of Civil Procedure 12(b)(6) to dismiss a complaint for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). "A Rule 12(b)(6) motion tests the legal sufficiency of a complaint[.]" Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). In a motion to dismiss for failure to state a claim under Rule 12(b)(6), the complaint must be construed in the light most favorable to the plaintiff, id., and "the court must assume the truth of all well-pleaded allegations." Warren v. District of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, acceptable as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
Ordinarily, a federal court must first determine that it has jurisdiction over a case before ruling on its merits. Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) ("Without jurisdiction the court cannot proceed at all in any cause.") (quoting Ex parte McCardle, 74 U.S. 506, 514 (1868)). However, when a case can be "resolved on the merits in favor of the same party[,]" it is not necessary to grapple first with difficult jurisdictional questions. Norton v. Mathews, 427 U.S. 524, 532 (1976); see also Feinstein v. Resolution Trust Corp., 942 F.2d 34, 40 (1st Cir. 1991) (noting that where "the affected defendant does not insist that the jurisdictional issue be determined first, . . . we cannot fault the district court for eschewing difficult jurisdictional and venue-related issues in favor of ordering dismissal on the merits"). The defendants do not object to the possibility of dismissing the claim on the merits without considering the jurisdictional questions.*fn4 (Defs.' Mem. of Law in Supp. of the PA's and the PLO's Mot. to Dismiss ("Defs.' Mem.") at 44-45.)
I. CAUSES OF ACTION UNDER THE ATS
The ATS provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. § 1350. This statute confers a jurisdictional grant for a "narrow set of common law actions derived from the law of nations[.]" Sosa v. Alvarez-Machain, 542 U.S. 692, 721 (2004). While the ATS may provide subject-matter jurisdiction for modern causes of action not recognized at the time of its initial passage in 1789, id. at 724-25 (noting that no development in the law since the passage of the ATS "has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law"), there is a "high bar to new private causes of action for violating international law[.]" Id. at 727. "[A] decision to create a private right of action is one better left to legislative judgment in the great majority of cases[,]" especially because of "the potential implications for the foreign relations of the United States of recognizing such causes[.]" Id.
A. The Effect of the TVPA on Torture Claims Under the ATS
Torture is one of the rare situations in which courts have recognized a common law cause of action under the ATS. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980) (holding that "an act of torture committed by a state official against one held in detention" is actionable under the ATS because it "violates established norms of the international law of human rights"). After a federal circuit judge expressed doubt that such a judicially-created cause of action was appropriate, see Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 813 (D.C. Cir. 1984) (Bork, J., concurring) (questioning the propriety of finding that "a rule has evolved against torture by government so that our courts must sit in judgment of the conduct of foreign officials in their own countries with respect to their own citizens"), Congress passed the TVPA. See S. Rep. 102-249, at 4-5 (1991) ("Judge Robert H. Bork questioned the existence of a private right of action under the [ATS], reasoning that separation of powers principles required an explicit grant by Congress of a private right of action for lawsuits which affect foreign relations. The TVPA would provide such a grant[.]"
(citing Tel-Oren)). The TVPA provides, in relevant part, that "[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture shall, in a civil action, be liable for damages to that individual[.]" 28 U.S.C. § 1350. The Supreme Court cited the TVPA as an example of a clear Congressional mandate for creating a cause of action for claims of torture and extra-judicial killing, but the Court did not explicitly recognize the TVPA as providing the exclusive remedy for torture claims. See Sosa, 542 U.S. at 728 (observing that the "affirmative authority" of the TVPA "is confined to specific subject matter" and that "the legislative history includes the remark that [the ATS] should 'remain intact to permit suits based on other norms that already exist or may ripen in the future into rules of customary international law'" (quoting H.R. Rep. No. 102-367(I), at 4 (1991))).
Two circuit courts have since reached opposite conclusions about whether the TVPA occupies the field with respect to claims for torture and preempts any common law torture claim that a plaintiff might otherwise plead under the ATS. In Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005), the Eleventh Circuit found that a plaintiff could raise separate claims for torture under the TVPA and the ATS. The court found support for its conclusion in the differing statutory texts of the TVPA and ATS,*fn5 the lack of an explicit holding in Sosa that the TVPA provided the sole remedy for torture claims, and the canon disfavoring interpreting a later statute as amending by implication an earlier one where no intent to repeal or amend is clear and manifest, reasoning that viewing the TVPA as providing the exclusive remedy for torture would require viewing the TVPA as having amended the ATS by implication. Id. at 1250-51. On the other hand, in Enahoro v. Abubakar, 408 F.3d 877, 884-85 (7th Cir. 2005), the Seventh Circuit found the TVPA did occupy the field of possible causes of action for torture because "[i]f it did not, it would be meaningless" since "[n]o one would plead a cause of action under the [TVPA] and subject himself to its requirements if he could simply plead under international law." The court dismissed the notion that the TVPA's legislative history reflected Congressional intent to preserve a torture cause of ...