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Al-Tamimi v. Adelson

United States District Court, District of Columbia

August 29, 2017

BASSEM AL-TAMIMI, et al., Plaintiffs,
v.
SHELDON ADELSON, et al., and UNITED STATES OF AMERICA, Defendants.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE.

         Plaintiffs-Palestinians and Palestinian-Americans from East Jerusalem, the West Bank, the Gaza Strip, and five Palestinian village councils-bring this lawsuit against forty-nine Defendants, including individuals, multi-national corporations, non-governmental organizations, banks, and the United States.[1] (ECF No. 77 (“Am. Compl.”) pp. 1-10 & ¶¶ 29, 32-77). Plaintiffs allege that Defendants: (1) engaged in a civil conspiracy to expel all non-Jews from East Jerusalem, the West Bank, and the Gaza Strip (Count I); (2) committed war crimes, crimes against humanity, and genocide in violation of the law of nations under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”), and the Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat. 73 (1992) (“TVPA”) (Count II); (3) aided and abetted the commission of war crimes (Count III); and (4) engaged in a 30-year pattern of aggravated and ongoing trespass (Count IV). (Id. ¶¶ 118-255). They seek $1 billion in damages. (Id. at ¶¶ 180, 227, 233, 255).

         Pursuant to this court's Order, the United States and all other Defendants filed motions to dismiss raising jurisdictional arguments under Federal Rule of Civil Procedure 12(b)(1). (ECF Nos. 104 (“USA Mot.”), 107 (“Defs. Mot.”)).[2] As more fully explained below, upon careful review of the Amended Complaint and the parties' filings, the court concludes that it lacks jurisdiction to hear Plaintiffs' claims against the United States, as Congress has not waived sovereign immunity for such claims. The court further concludes that it lacks subject matter jurisdiction to adjudicate the claims against all Defendants because they are replete with non-justiciable political questions. Accordingly, the court will GRANT both motions to dismiss and will dismiss Plaintiffs' claims against all Defendants.

         I. BACKGROUND

         Plaintiffs bring their claims under the Alien Tort Claims Act, 28 U.S.C. § 1350, also referred to as the “Alien Tort Statute” or “ATS.” (Am. Compl. ¶ 1). Those Plaintiffs who are U.S. citizens also assert their claims of war crimes and genocide under the Torture Victims Protection Act of 1991 (“TVPA”), which amends the ATS, 28 U.S.C. § 1350. (Id. ¶ 3).[3]

         Plaintiffs divide the Defendants into five categories: “Donor Defendants, ”[4] “Settlement and [Israel Defense Forces] Advocate/Promoter, ”[5] “Pro-Settlement Tax-Exempt Entity Defendants, ”[6] “Defendant Banks, ”[7] and “Defendant Construction/Support Firms.”[8] Plaintiffs allege that the Donor Defendants provide financial support, which helps “promote the growth of settlements” in the West Bank, Gaza, and East Jerusalem-what Plaintiffs refer to as the Occupied Palestinian Territories (“OPT”)-that “would necessarily [lead to] the ethnic cleansing of all Palestinian families living near OPT settlements.” (Am. Compl. ¶ 32). Plaintiffs allege that Elliott Abrams “encouraged classic ethnic cleansing” by “urg[ing] senior aides to former Prime Ministers Sharon, Barack, and Olmert and settlement officials to continue annexing privately-owned Palestinian property knowing that settlement expansions would necessarily entail the violent expulsion of the local Palestinian population.” (Id. ¶ 41).

         Plaintiffs claim the Tax-Exempt Entity Defendants violated customary international law; committed perjury, money laundering, and tax fraud; and “knew, like their donors, that the local Palestinian population would be maimed and murdered by violence-prone settlers with those funds” they received. (Id. ¶ 42). Plaintiffs allege that the Defendant Banks “transferred millions of dollars every year to various settlements knowing . . . the funds would be used to expand OPT settlements by arming the settler population, who in turn would attack (and sometimes kill) their Palestinian neighbors.” (Id. ¶ 55). Finally, Plaintiffs claim that the Defendant Construction/Support Firms: (1) “supplie[d] equipment to Israeli prisons;” (2) “worked with” other firms operating in settlements; (3) “market[ed] . . . Israeli real estate opportunities to Americans;” (4) “knew and encouraged the tax-exempt entities to continue funding the ongoing demolition of Palestinian homes;” (5) “list[ed] and s[old] settlement properties built on private Palestinian property, ” which “necessarily entailed the violent expulsion of Palestinian homeowners;” and (6) in various other ways supported the expansion of settlements in Gaza, the West Bank, and East Jerusalem. (Id. ¶¶ 57-77).

         Plaintiffs further ask this court to “draw some big-picture conclusions.” (Id. ¶ 78). These include that “the settlement enterprise has been an intentional, profitable, and ongoing activity for at least 40 years;” “it entailed the expulsion of approximately 400, 000 Palestinians from the OPT;” and “it also resulted in the demolition or confiscation of 49, 000 Palestinian homes.” (Id.).

         II. LEGAL STANDARD

         Federal courts are courts of limited jurisdiction. See Gen. Motors Corp. v. E.P.A, 363 F.3d 442, 448 (D.C. Cir. 2004). The law presumes that “a cause lies outside [the court's] limited jurisdiction” unless the plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). When a defendant files a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan v. Sibley Int'l Corp., 217 F.Supp.2d 59, 63 (D.D.C. 2002).

         In evaluating a motion to dismiss under Rule 12(b)(1), the court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged[.]'” Am. Nat'l Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). “Nevertheless, ‘the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions.'” Disner v. United States, 888 F.Supp.2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United States, 461 F.Supp.2d 71, 73 (D.D.C. 2006)). Moreover, 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), and “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. District of Columbia Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000).

         III. DISCUSSION

         A. Justiciability Under the Political Question Doctrine

         All Defendants argue that this court lacks subject matter jurisdiction under the political question doctrine. In Baker v. Carr, the Supreme Court articulated six criteria to determine whether a case involves non-justiciable political questions. 369 U.S. 186, 217 (1962). These include: (1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department, ” (2) “a lack of judicially discoverable and manageable standards for resolving it, ” (3) the “impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion, ” (4) “the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government, ” (5) “an unusual need for unquestioning adherence to a political decision already made, ” and (6) “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id. Courts are thus deprived of subject matter jurisdiction if any of the six Baker factors are present. Id. While “the Judiciary has a responsibility to decide cases properly before it, even those it ‘would gladly avoid, ' . . . [t]he political question doctrine constitutes a narrow exception to that rule, and, when properly invoked, deprives a court of authority to decide the issues before it.” Simon v. Republic of Hungary, 812 F.3d 127, 149-150 (D.C. Cir. 2016) (quoting Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 194-95 (2012)).

         A court “must conduct ‘a discriminating analysis of the particular question posed' in the ‘specific case' before [it] to determine whether the political question doctrine prevents a claim from going forward.” El-Shifa Pharm. Ind. Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010) (quoting Baker, 369 U.S. at 211). If this case were permitted to go forward, resolution of Plaintiffs' claims for trespass, genocide, and other war crimes would require this Court to determine: (1) the limits of state sovereignty in foreign territories where boundaries have been disputed since at least 1967; (2) the rights of private landowners in those territories; (3) the legality of Israeli settlements in the West Bank, Gaza, and East Jerusalem; and (4) whether the actions of Israeli soldiers and private settlers in the disputed territories constitute genocide and ethnic cleansing. With respect to the Defendants in this case, the court would further have to decide whether contributing funds to or performing services in these settlements is inherently unlawful and tortious, as Plaintiffs allege that settlement expansion is inextricably tied to violence against Palestinians.

         There is no question that the first Baker factor is implicated in this case. In general, issues involving foreign policy are constitutionally committed to the political branches of the federal government, and therefore normally constitute non-justiciable political questions. See Haig v. Agee, 453 U.S. 280, 292 (1981) (“[T]he conduct of foreign relations . . . [is] exclusively entrusted to the political branches . . . [and] immune from judicial inquiry or interference.”) (quotations omitted); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 803 (D.C. Cir. 1984) (“Questions touching on the foreign relations of the United States make up what is likely the largest class of questions to which the political question doctrine has been applied.”). Of course, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Baker, 369 U.S. at 211. However, Plaintiffs ask this court to wade into foreign policy involving one of the most protracted diplomatic disputes in recent memory. As another judge of this court stated when deciding a similar case, “[i]t is hard to conceive of an issue more quintessentially political in nature than the ongoing Israeli-Palestinian conflict, which has raged on the world stage with devastation on both sides for decades.” Doe I v. State of Israel, 400 F.Supp.2d 86, 111-12 (D.D.C. 2005). Additionally, the Supreme Court recently noted, in a case involving Israel's sovereignty over the city of Jerusalem-an issue also central to this case-that “[q]uestions touching upon the history of the ancient city and its present legal and international status are among the most difficult and complex in international affairs. In our constitutional system these matters are committed to the Legislature and the Executive, not the Judiciary.” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. 2076, 2081 (2015). Thus, this court concludes that Baker's first factor is undeniably implicated here, and therefore Plaintiffs' claims are ultimately non-justiciable.

         Moreover, given the centrality of the question of sovereignty over these disputed lands- and in particular the ongoing expansion of settlements on those lands-this case implicates not only the first Baker factor, but also several others. One factor is the need to avoid making “an initial policy determination of a kind clearly for nonjudicial discretion.” Another factor implicated in this case is the need to avoid the “potentiality of embarrassment” to the United States government, since this court's adjudication may conflict with the other branches' sensitive positions regarding the legality and implications of the settlements, broader questions of Israel's sovereignty, and the right to private ownership and control over the disputed lands in the region. Where, as here, the court is asked to make a determination on issues at the forefront of global relations while the United States government continues to determine how best to approach these same issues, it should decline to weigh in on such sensitive diplomatic and geopolitical matters.

         Another court in this district reached the same conclusion in Doe I v. State of Israel. In the first of two opinions, the court evaluated similar claims brought by Palestinian and Palestinian-American plaintiffs seeking monetary damages from the President, the Secretary of State, and several corporations who contract with the U.S. government. See ECF No. 42 (“Mem. Op.”), Doe I v. State of Israel, Case No. 02-1431(D.D.C. Oct. 3, 2003). As here, those plaintiffs asserted claims under the ATS, alleged violations of international law, and brought numerous tort claims against defendants for alleged harms committed in settlements. Id. at 2. Noting that “plaintiffs' claims here directly affect United States foreign policy, ” the court concluded that the issues involved in the Israel-Palestine conflict and sovereignty disputes “cr[y] out for unyielding deference to the political branches.” Id. at 12-13. Ultimately, the court found that the claims brought against both the United States and the private defense contractors were non-justiciable political questions. Id. at 14, 18. Two years later, in a follow-up opinion, the court dismissed the remaining claims, holding that “[a] ruling on any of these issues would draw the Court into the foreign affairs of the United States, thereby interfering with the sole province of the Executive Branch.” Doe I, 400 F.Supp.2d at 112. It also noted that the plaintiffs' tort claims “would require the Court to characterize the ongoing armed conflict in the West Bank as either ‘genocide' or self-defense. Such a predicate policy determination is plainly reserved to the political branches of government, and the court is simply not equipped with ‘judicially discoverable or manageable standards' for resolving a question of this nature.” Id. at 112-13 (quoting Schneider v. Kissinger, 310 F.Supp.2d 251, 261-63 (D.D.C. 2004)). The issues presented here are not distinguishable in any significant or meaningful way from those considered by the court in Doe I, and this court likewise concludes that Plaintiffs' claims are non-justiciable.

         The cases cited by Plaintiffs in their Opposition do not compel a different conclusion or otherwise persuade the court that these issues are justiciable. First, Plaintiffs cite just one decision from the D.C. Circuit: Simon v. Republic of Hungary. In Simon, the court considered claims brought by fourteen Jewish survivors of the Holocaust in Hungary, twelve of whom had been forcefully transported to Auschwitz, who alleged that the Republic of Hungary, a state-owned Hungarian railway, and an Austrian freight-rail company all committed the torts of false imprisonment, torture, assault, and unjust enrichment by playing an integral role in the attempted extermination of Hungarian Jews. 812 F.3d at 134. The court found that neither a 1947 treaty nor a 1973 agreement between Hungary and the United States “raise[d] any significant risk that judicial consideration of this case could undermine Executive Branch actions, ” including “the Executive's negotiated resolution [of World War II] in [the 1947 treaty].” Id. at 150. The same conclusion cannot be reached here, where the resolution of the Israel-Palestine conflict, including questions of sovereignty in the West Bank, Gaza, and East Jerusalem, is still very much at the forefront of the Executive's ongoing diplomatic efforts in the region.

         Moreover, the court in Simon noted that “[t]he Executive Branch . . . has given no indication that adjudication of the plaintiffs' lawsuit would encroach on those agreements or raise any broader foreign relations concerns. The Executive often files a statement in court if it believes that judicial consideration of a case would interfere with the operation of the United States' treaties and agreements or would otherwise impinge on the conduct of foreign relations.” Id. at 150-51 (citing Alperin v. Vatican Bank, 410 F.3d 532, 556-57 (9th Cir. 2005)); see also Doe v. Exxon Mobil Corp., 69 F.Supp.3d 75, 92 (D.D.C. 2014) (concluding that the political question doctrine did not bar the ...


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