United States District Court, District of Columbia
BERMAN JACKSON United States District Judge
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.
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
3), and Intentionally Causing Serious Bodily Injury (Count
4). Id. ¶¶ 47-62. The complaint also
includes five tort claims: Arbitrary Arrest and Detention
(Count 5), False Imprisonment (Count 6), Assault and Battery
(Count 7), Intentional Infliction of Emotional Distress
(Count 8), and Conversion (Count 9). Id.
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. 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 Federal Rules of Civil Procedure
12(b)(1), 12(b)(2), and 12(b)(6). Defs.' Rule 12(b) Mot.
to Dismiss [Dkt. # 17] (“Defs.' Mot.”);
Defs.' Mem. in Supp. of Def.'s Mot. [Dkt. # 17-1]
(“Defs.' Mem.”). Because the Court finds that
Israel has not waived its sovereign immunity under either the
tort exception or the terrorism exception to the Foreign
Sovereign Immunities Act, 28 U.S.C. § 1602, et
seq. (“FSIA”), it will grant defendants'
motion and dismiss this case for lack of subject matter
jurisdiction. This decision is based solely on the
application of statutory principles, and it is not premised
upon any consideration of, or determination concerning,
whether either the blockade or the military action was
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.
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 will not set
forth the facts concerning the interception of the other
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.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.
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. 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
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.
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, hooded her for an extended period of time, and
groped her, and when they shot plaintiff Deknopper in the
face with a rubber bullet. Compl. ¶¶ 48-51. In
Count 2, all plaintiffs allege that they were subjected to
the war crime of cruel and inhuman treatment. Id.
¶¶ 53-55. Plaintiff Schermerhorn alleges in Count 3
that the use of the grenade, which caused him to partially
lose sight in one eye, constitutes the war crime of
mutilation or maiming. Id. ¶¶ 57-59.
Plaintiffs Schermerhorn, Arraf, and Deknopper allege in Count
4 that the IDF's conduct intentionally caused them
serious bodily injury, a war crime under international law.
Id. ¶¶ 61-62. All plaintiffs claim that
they were subjected to arbitrary arrest and detention (Count
5), false imprisonment (Count 6), assault and battery at the
hands of the IDF (Count 7), and the conversion of their
personal property (Count 9). Id. ¶¶ 64-
73; 76-78. Finally, in Count 8, all plaintiffs seek damages
for intentional infliction of emotional distress.
Id. ¶ 75.
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 Rule
12(b)(6), and that the action should be dismissed under Rule
12(b)(2) under the doctrine of forum non conveniens
so that the claims can be resolved in Israel. Id. at
37-45. Plaintiffs opposed the motion, Pls.' Mem. of P.
& A. in Opp. to Defs.' Mot. [Dkt. # 22]
(“Pls.' Opp.”), defendants replied in support
of their motion, Defs.' Reply Mem. in Supp. of Defs.'
Mot. [Dkt. # 23] (“Defs.' Reply”), and
plaintiffs were granted leave to file a brief sur-reply.
Pls.' Sur-Reply in Further Opp. to Defs.' Mot. [Dkt.
# 26] (“Pls.' Sur-Reply”).
November 21, 2016, the United States submitted a Statement of
Interest in this case pursuant to 28 U.S.C. § 517,
taking the position “that neither exception to immunity
invoked by plaintiffs removes Israel's immunity under
FSIA in this case.” Statement of Interest of the U.S.
[Dkt. # 28] (“SOI”). Each side had an opportunity
to respond to the government's position. Min. Order (Nov.
28, 2016); Pls.' Resp. to SOI [Dkt. # 29]
(“Pls.' SOI Opp.”). Because the Court agrees
with defendants and the United States that it lacks
jurisdiction under the FSIA, the case will be dismissed and
the Court need not reach any of the other issues.
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 (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] authority.”
Id., citing Akinseye v. District of
Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003).
Federal Rule of Civil Procedure 12(b)(1), plaintiffs bear the
burden of establishing jurisdiction by a preponderance of the
evidence. See Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992); Shekoyan v. Sibley Int'l Corp.,
217 F.Supp.2d 59, 63 (D.D.C. 2002). “[B]ecause
subject-matter jurisdiction is ‘an Art[icle] III as
well as a statutory requirement . . . no action of the
parties can confer subject-matter jurisdiction upon a federal
court.'” Akinseye, 339 F.3d at 971,
quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites
de Guinee, 456 U.S. 694, 702 (1982).
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 (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.
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 (1993);
see 28 U.S.C. § 1604 (“a foreign state
shall be immune from the jurisdiction of the courts of the
United States and of the States except as provided in
sections 1605 to 1607 of this chapter”). The exceptions
set forth in the statute provide “the sole basis for
obtaining jurisdiction over a foreign state in the courts of
this country.” OBB Personenverkehr AG v.
Sachs, 136 S.Ct. 390, 393 (2015), quoting Argentine
Republic v. Amerada Hess Shipping Corp., 488 U.S. 428,
443 (1989) (internal quotation marks omitted); see also
Simon v. Republic of Hungary, 812 F.3d 127, 135 (D.C.
Cir. 2016). Because “subject matter jurisdiction in any
such action depends on the existence of one of the specified
exceptions . . . [a]t the threshold of every action in a
district court against a foreign state . . . the court must
satisfy itself that one of the exceptions applies.”
Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S.
480, 493-94 (1983); see also Belize Social Dev. Ltd. v.
Government of Belize, 794 F.3d 99, 101 (D.C. Cir. 2015)
(describing the FSIA's terms as “absolute”);
Jerez v. Republic of Cuba, 775 F.3d 419, 423-24
(D.C. Cir. 2014), citing Mwani v. bin Laden, 417
F.3d 1, 15 (D.C. Cir. 2005). And given the
“comprehensive” nature of the FSIA, “any
sort of immunity defense made by a foreign sovereign in an
American court must stand on the Act's text. Or it must
fall.” Republic of Argentina v. NML Capital,
Ltd., 134 S.Ct. 2250, 2255-56 (2014).
The applicable ...