Bassem Al-Tamimi v. Sheldon Adelson ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2018 Decided February 19, 2019
No. 17-5207
BASSEM AL-TAMIMI, ET AL.,
APPELLANTS
v.
SHELDON ADELSON, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00445)
Martin F. McMahon argued the cause and filed the briefs
for the appellants.
Thomas Pulham, Attorney, United States Department of
Justice, argued the cause for the appellees United States of
America and Elliott Abrams. Mark B. Stern and Sharon
Swingle, Attorneys, United States Department of Justice, were
with him on brief.
Jonathan I. Blackman argued the cause for the appellees
Sheldon Adelson, et al. Alexis L. Collins, John E. Hall, David
M. Zionts, A. Jeff Ifrah, George R. Calhoun, Barry G. Felder,
Michael J. Tuteur, William H. Jeffress, Jr., Abbe David Lowell,
Douglas W. Baruch, Joseph J. LoBue, Jennifer M. Wollenberg,
2
William J. Kelly, III, Andrew H. Marks, Christopher M.
Loveland, Mark D. Harris, Rachel O. Wolkinson, Charles S.
Fax, Jay P. Lefkowitz, Lawrence Marc Zell, Lars H. Liebeler,
David Abrams, Jay Alan Sekulow, Benjamin P. Sisney and
David I. Schoen were with him on brief. Michael E.
Barnsback and Liesel J. Schopler entered appearances.
Benjamin P. Sisney, L. Marc Zell and David Abrams were
on the supplemental brief for the defendants-appellees Gush
Etzion Foundation, et al.
Before: HENDERSON and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge:
The plaintiffs, both Palestinian nationals and Palestinian
Americans, claim the defendants, pro-Israeli American
individuals and entities, are conspiring to expel all non-Jews
from territory whose sovereignty is in dispute.1 They sued in
federal district court, pressing four claims: (1) civil conspiracy,
(2) genocide and other war crimes, (3) aiding and abetting
genocide and other war crimes and (4) trespass. Concluding
that all four claims raise nonjusticiable political questions, the
district court dismissed the complaint for lack of subject matter
jurisdiction. We now reverse.
1
The ownership of the territory, which comprises the West
Bank, including East Jerusalem, and the Gaza Strip, is at the heart of
a decades-long dispute between the Israelis and the Palestinians. We
refer to it as the “disputed territory.”
3
I. BACKGROUND
The plaintiffs are eighteen Palestinians who mostly reside
in the disputed territory and a Palestinian village council. The
defendants, all American citizens or entities, are eight high-net-
worth individuals, thirteen tax-exempt entities, two banks,
eight construction and support firms and a former United States
deputy national security advisor.2 The complaint alleges that
the defendants engaged in a conspiracy to expel all non-Jews
from the disputed territory. Specifically, the individual
defendants (excluding Abrams) funneled millions of dollars
through the defendant tax-exempt entities and banks to Israeli
villages called “settlements.” Armed with this financial
assistance, the settlement leaders hired full-time security
coordinators who trained a militia of Israeli settlers to kill
Palestinians and confiscate their property. The defendant
construction and support firms destroyed property belonging to
the plaintiff Palestinians and built settlements in its place and,
here in the United States, the deputy national security advisor
publicly endorsed the settlements. All defendants knew their
2
The individual defendants include Sheldon Adelson, Norman
Braman, Lawrence Ellison, Daniel Gilbert, John Hagee, Lev Leviev,
Irving Moskowitz and Haim Saban. The tax-exempt entities include
American Friends of Ariel, American Friends of Bet El Yeshiva,
American Friends of Har Homa, American Friends of Ulpana Ofra,
Christian Friends of Israeli Communities, Efrat Development
Foundation, Falic Family Foundation, Friends of Israel Defense
Forces, Gush Etzion Foundation, Honenu National Legal Defense
Organization, Karnei Shomron Foundation, The Hebron Fund and
The Jewish National Fund. The banks include Bank Leumi Le-Israel
and Bank Hapoalim. The construction and support firms include
G4S, RE/MAX, Africa Israel Investments, Veolia Environmental
Services, Volvo, Hewlett-Packard, Motorola Solutions and Orbital
ATK. The former United States deputy national security advisor is
Elliott Abrams.
4
conduct would result in the mass killings of Palestinians
residing in the disputed territory.
The plaintiffs’ complaint includes four claims: (1) each
defendant, save four of the individual defendants as well as the
banks and construction and support firms, engaged in a civil
conspiracy to rid the disputed territory of all Palestinians; (2)
each defendant committed or sponsored genocide and other
war crimes in violation of the law of nations; (3) seven
individual defendants, the two banks, four construction and
support firms and the former U.S. government official aided
and abetted the commission of genocide and other war crimes;
and (4) each of the banks and construction and support firms
trespassed on the plaintiff Palestinians’ property. All plaintiffs
bring their claims under the Alien Tort Statute (“ATS”), 28
U.S.C. § 1350. The American citizen plaintiffs also bring their
claims under the Torture Victim Protection Act of 1991
(“TVPA”), Pub. L. No. 102-256.
The defendants moved to dismiss the complaint for lack of
subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), and the
district court granted the motion. Al-Tamimi v. Adelson, 264 F.
Supp. 3d 69 (D.D.C. 2017). The court concluded that the
complaint raised at least five nonjusticiable political questions:
“(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;
[] (4) whether the actions of Israeli soldiers and private settlers
in the disputed territories constitute genocide and ethnic
cleansing . . . [and (5)] whether contributing funds to or
performing services in these settlements is inherently unlawful
and tortious.” Id. at 78.
The district court reached its dismissal decision using the
six “political question” factors set forth in Baker v. Carr, 369
U.S. 186 (1962). In Baker, the United States Supreme Court
5
explained that a claim presents a political question if it
involves:
[1] a textually demonstrable constitutional
commitment of the issue to a coordinate
political department; [2] or a lack of judicially
discoverable and manageable standards for
resolving it; [3] or the impossibility of deciding
without an initial policy determination of a kind
clearly for nonjudicial discretion; [4] or the
impossibility of a court’s undertaking
independent resolution without expressing lack
of the respect due coordinate branches of
government; [5] or an unusual need for
unquestioning adherence to a political decision
already made; [6] or the potentiality of
embarrassment from multifarious
pronouncements by various departments on one
question.
Id. at 217. The district court found the first Baker factor
implicated because “[q]uestions touching upon the history of
the ancient city [Jerusalem] and its present legal and
international status are . . . committed to the Legislature and the
Executive, not the Judiciary” and because “Plaintiffs ask this
court to wade into foreign policy involving one of the most
protracted diplomatic disputes in recent memory.” Al-Tamimi,
264 F. Supp. 3d at 78 (internal citations and quotations
omitted). It found “several other[]” Baker factors implicated,
including the third and sixth factors, because it believed a
judicial decision might “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.” Id. at 78-79. In sum, the district court
6
concluded, “[i]t is hard to conceive of an issue more
quintessentially political in nature than the ongoing Israeli-
Palestinian conflict.” Id.at 78 (internal citation and quotation
omitted). Accordingly, it dismissed the complaint under Fed.
R. Civ. P. 12(b)(1).3 The plaintiffs then timely appealed.
II. ANALYSIS
A. Forfeiture Vel Non
Before reviewing the district court’s political question
analysis, we address a preliminary issue. The defendants argue
that the plaintiffs forfeited their challenge to the district court’s
political question holding by improperly incorporating their
argument made at a preliminary stage of their appeal into their
opening merits brief. The plaintiffs had initially moved for
summary reversal, challenging in full in their supporting brief
the district court’s political question analysis. In their opening
merits brief, the plaintiffs did not repeat their political question
argument but instead incorporated it by reference—that is, they
directed the court to refer to their brief in support of the earlier
motion for summary reversal. The defendants claim the
plaintiffs forfeited their political question argument by not
making their supporting argument anew—and in full—in their
opening merits brief. We disagree.
3
The district court made additional rulings, including (1)
substituting the United States as a defendant in place of the former
government official pursuant to the Westfall Act, 28 U.S.C. § 2679,
and then dismissing the claims against the United States based on
sovereign immunity and (2) rejecting the application of the act of
state doctrine, which prevents a federal court from declaring invalid
the official act of a foreign sovereign, see Hourani v. Mirtchev, 796
F.3d 1, 11 (D.C. Cir. 2015). These rulings are not before us as the
plaintiffs have not appealed the first and the defendants have not
cross-appealed the second.
7
A party forfeits an argument by failing to raise it in his
opening brief. Herron v. Fannie Mae, 861 F.3d 160, 165 (D.C.
Cir. 2017). Mentioning an argument “in the most skeletal way,
leaving the court to do counsel’s work, create the ossature for
the argument, and put flesh on its bones” is tantamount to
failing to raise it. Schneider v. Kissinger, 412 F.3d 190, 200 n.1
(D.C. Cir. 2005) (quoting United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990)). We ordinarily reject a party’s attempt to
evade this rule by incorporating by reference an argument
made at an earlier stage of the litigation. See, e.g., Gerlich v.
DOJ, 711 F.3d 161, 173 (D.C. Cir. 2013) (incorporation by
reference of argument made in interlocutory appeal
insufficient); Davis v. PBGC, 734 F.3d 1161, 1167 (D.C. Cir.
2013) (incorporation by reference of argument made in district
court insufficient); Corson & Gruman Co. v. NLRB, 899 F.2d
47, 50 n.4 (D.C. Cir. 1990) (incorporation by reference of
argument made before agency insufficient). We do this for at
least two reasons. First, incorporation by reference can be used
to evade word limits. See, e.g., Gerlich, 711 F.3d at 173
(rejecting appellants’ incorporation explanation that
“appellee’s counsel would not consent to an extension of the
14,000-word space limitation”); Davis, 734 F.3d at 1167
(rejecting incorporation of argument made in district court on
basis it “would circumvent the court’s rules . . . regarding the
length of briefs”). Second, opponents may not have a fair
chance to respond to arguments that are incorporated by
reference. See Corson, 899 F.2d at 50 n.4 (rejecting
incorporation of argument made to agency “to prevent
‘sandbagging’ of appellees . . . and to provide opposing counsel
the chance to respond”).
In their opening merits brief, the plaintiffs “ask[ed] this
Court to reverse the lower court’s ruling that the litigation
cannot go forward because of the political question doctrine,”
maintaining that the “issue ha[d] been thoroughly briefed . . .
in their memorandum in support of their summary reversal
8
motion.” Appellants’ Br. 14. Although we would otherwise
reject this maneuver, here we find the plaintiffs’ incorporation
by reference unobjectionable. First, before merits briefing was
due, we warned the parties that we “look[] with extreme
disfavor on repetitious submissions.” April 12, 2018 Per
Curiam Order. Although our order was aimed at the
defendants, who were allowed to submit three briefs
notwithstanding risk of repetition, it was reasonable for the
plaintiffs to believe the warning applied equally to them.
Further, the plaintiffs’ opening brief was concise enough that
they could have inserted their entire summary disposition brief
into it without exceeding the word limit. In other words, they
were not seeking to, and did not, evade the word limit.
Moreover, the defendants’ responding merits brief—in the
main—defended the district court’s political question holding.
They therefore had a fair opportunity to respond to the
plaintiffs’ opposing political question arguments. In light of
these considerations, we conclude that the plaintiffs have not
forfeited their challenge to the district court’s political question
holding, the central issue on appeal.
B. Political Question Doctrine is Jurisdictional
The district court treated the political question doctrine as
jurisdictional and therefore dismissed the complaint pursuant
to Fed. R. Civ. P. 12(b)(1) before considering whether
dismissal for failure to state a claim was appropriate under Fed.
R. Civ. P. 12(b)(6). “‘Jurisdiction is power to declare the law,
and when it ceases to exist, the only function remaining to the
court is that of announcing the fact and dismissing the cause.’”
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)
(quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).
Although the parties do not dispute the district court’s
treatment of the political question doctrine as jurisdictional, we
must always determine our jurisdiction ex mero motu.
9
Baker, the fountainhead of the modern political question
doctrine, did not definitively resolve whether the doctrine is
jurisdictional. Indeed, at one point, the Supreme Court
suggested that the doctrine is not jurisdictional. See 369 U.S. at
198 (calling it a “justiciability” doctrine and distinguishing a
jurisdictional defect like no case or controversy from a
justiciability defect, the latter described as the “withholding
[of] federal judicial relief . . . [based] upon the
inappropriateness of the subject matter for judicial
consideration”). At another point, however, Baker suggested
that the political question doctrine forms part of Article III’s
case or controversy requirement, implying that it is
jurisdictional. Id. (declaring that the absence of a political
question “settles the only possible doubt that [this case] is a
case or controversy”); id. at 198-99, 208. In Schlesinger v.
Reservists Comm. to Stop the War, the Court resolved this
tension, explicitly treating the political question doctrine as
jurisdictional. 418 U.S. 208, 215 (1974) (“[T]he concept of
justiciability, which expresses the jurisdictional limitations
imposed upon federal courts by the ‘case or controversy’
requirement of Art. III, embodies both the standing and
political question doctrines upon which petitioners in part
rely.”).
Although the Supreme Court has not again expressly
characterized the political question doctrine as jurisdictional
since Schlesinger, our Court has done so several times. See,
e.g., bin Ali Jaber v. United States, 861 F.3d 241, 245 (D.C.
Cir. 2017); El-Shifa Pharm. Indus. Co. v. United States, 607
F.3d 836, 840–41 (D.C. Cir. 2010) (en banc); Gonzalez-Vera
v. Kissinger, 449 F.3d 1260, 1262 (D.C. Cir. 2006). Whatever
the correctness of treating the political question doctrine as
other than jurisdictional, we follow Schlesinger and,
10
accordingly, agree with the district court’s treatment of the
doctrine as jurisdictional.4
C. Political Question Analysis
Having determined that the political question challenge
has not been forfeited and that the doctrine is jurisdictional, we
turn to the district court’s holding that the plaintiffs’ claims in
fact present political questions. We review the district court’s
holding de novo. Starr Int’l Co., v. United States, 910 F.3d 527,
533 (D.C. Cir. 2018). In so doing, we accept as true the
plausible facts alleged in the complaint. Schnitzer v. Harvey,
389 F.3d 200, 202 (D.C. Cir. 2004).
4
Perhaps the better view is that, like other justiciability
doctrines, some elements of the political question doctrine are
jurisdictional and others are prudential. See Nat’l Treasury Emps.
Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (“In
an attempt to give meaning to Article III’s case-or-controversy
requirement, the courts have developed a series of principles termed
‘justiciability doctrines,’ among which are standing, ripeness,
mootness, and the political question doctrine. These doctrines are
composed both of prudential elements which ‘Congress is free to
override,’ and ‘core component[s]’ which are ‘essential and
unchanging part[s] of the case-or-controversy requirement of Article
III.’” (citations omitted) (first quoting Allen v. Wright, 468 U.S. 737,
750 (1984), second quoting Fair Emp’t Council of Greater Wash.,
Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1278 (D.C. Cir. 1994), and
then quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992))).
Distinctions among the Baker factors may provide a basis for
distinguishing the jurisdictional elements of the political question
doctrine from the prudential. See Zivotofsky ex rel. Zivotofsky v.
Clinton (Zivotofsky I), 566 U.S. 189, 202-07 (2012) (Sotomayor, J.,
concurring in part and in the judgment); id. at 212-13 (Breyer, J.,
dissenting). But the Supreme Court has not yet recognized a
bisection of the political question doctrine.
11
The political question doctrine arises from the
constitutional principle of separation of powers. The “doctrine
excludes from judicial review those controversies which
revolve around policy choices and value determinations
constitutionally committed for resolution to the halls of
Congress or the confines of the Executive Branch.” Japan
Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230
(1986). In deciding whether a controversy presents a political
question, “[w]e must conduct ‘a discriminating analysis of the
particular question posed’ in the ‘specific case.’” bin Ali Jaber,
861 F.3d at 245 (quoting Baker, 369 U.S. at 211). Abstraction
and generality do not suffice. To be precise, we follow a three-
step process. First, we identify the issues raised by the
plaintiffs’ complaint. Next, we use the six Baker factors to
determine whether any issue presents a political question. See
El-Shifa, 607 F.3d at 840–42. Finally, we decide whether the
plaintiffs’ claims can be resolved without considering any
political question, to the extent one or more is presented.
Indeed, the political question doctrine mandates dismissal only
if a political question is “inextricable from the case.” Baker,
369 U.S. at 217; see also U.S. Dep’t of Commerce v. Montana,
503 U.S. 442, 456 (1992); Davis v. Bandemer, 478 U.S. 109,
122 (1986). In other words, “the political question doctrine is a
limited and narrow exception to federal court jurisdiction.”
Starr, 910 F.3d at 533 (citing United States v. Munoz-Flores,
495 U.S. 385, 396 (1990)). A court cannot “avoid [its]
responsibility” to enforce a specific statutory right “merely
‘because the issues have political implications.’” Zivotofsky ex
rel. Zivotofsky v. Clinton (Zivotofsky I), 566 U.S. 189, 196
(2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)).
1. Issues Raised by Plaintiffs’ Complaint
As noted earlier, the district court concluded that the
plaintiffs’ complaint raises five political questions:
12
(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; [] (4) whether the actions of
Israeli soldiers and private settlers in the
disputed territories constitute genocide and
ethnic cleansing . . . [and (5)] whether
contributing funds to or performing services in
these settlements is inherently unlawful and
tortious.
Al-Tamimi, 264 F. Supp. 3d at 78. The defendants believe this
case presents two additional political questions: (6) Do the
equities favor Israelis or Palestinians in the West Bank? and (7)
Is the root cause of violence in the disputed territory the
Palestinian landowners or the Israeli settlers? Although the
factual allegations of the complaint undoubtedly bear on these
questions, our duty is to analyze the specific claims to
determine whether they require us to answer them.5 See bin Ali
Jaber, 861 F.3d at 245 (requiring “‘discriminating analysis of
the particular question posed’ in the ‘specific case’” (quoting
Baker, 369 U.S. at 211)).
5
The plaintiffs have done this work for us with respect to one
issue, expressly waiving any theory of liability premised upon the
conduct of Israeli soldiers. See Appellants’ Reply Br. 2 (“[T]he lower
Court here does not have to decide if military activity engaged in in
the [disputed territory] is illegal. The reason—it is the belligerent
settlers who have: a) stolen thousands of acres of private Palestinian
property; b) burned down olive groves; c) poisoned water wells and
livestock; d) forged deeds to Palestinian properties; and e) forcibly
removed 400,000 Palestinians from the [disputed territory].”).
13
In Count I the plaintiffs allege that the defendants engaged
in a civil conspiracy to expel all non-Jews from the disputed
territory. The elements of civil conspiracy are:
(1) an agreement between two or more persons;
(2) to participate in an unlawful act, or a lawful
act in an unlawful manner; (3) an injury caused
by an unlawful overt act performed by one of
the parties to the agreement; (4) which overt act
was done pursuant to and in furtherance of the
common scheme.
Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir. 1983).
Count I charges as the requisite “unlawful acts” genocide and
theft and destruction of private property. To determine whether
Israeli settlers committed genocide, we must answer only one
of the seven political questions identified by the district court
and the defendants—Question #4 (Do the Israeli settlers’
actions in the disputed territory constitute genocide and ethnic
cleansing?). And to determine whether Israeli settlers engaged
in theft and destruction of private property, we must answer
only Question #2 (What are the rights of private landowners in
the disputed territory?).
In Count II, the plaintiffs allege that the defendants
committed war crimes, crimes against humanity and genocide
in violation of the law of nations. Specifically, they allege the
defendants committed “murder, ill treatment of a civilian
population in occupied territory, pillage, destruction of private
property, and persecution based upon religious or racial
grounds.” And in Count III, the plaintiffs allege that the
defendants aided and abetted the crimes alleged in Count II.
Counts II and III therefore require the court to determine
whether Israeli settlers committed murder, pillage, destruction
of private property, persecution based upon religious or racial
grounds or ill-treatment of a civilian population in occupied
14
territory. To determine whether Palestinians constitute a
“civilian population in occupied territory,” the court must
answer only Question #1 (What are the limits of state
sovereignty in the West Bank, Gaza and East Jerusalem?). To
determine whether the Israeli settlers pillaged or destroyed
private property, the court must answer only Question #2
(What are the rights of private landowners in the disputed
territory?). And to determine whether Israeli settlers murdered
or persecuted Palestinians based upon religious or racial
grounds, the court must answer only Question #4 (Do the
actions of Israeli settlers in the disputed territory constitute
genocide and ethnic cleansing?). Finally, Count IV alleges that
the defendants committed aggravated and ongoing trespass. To
resolve Count IV, the court must answer only Question #2
(What are the rights of private landowners in the disputed
territory?).
Thus, only three of the seven purported political questions
identified by the district court or the defendants are questions—
political or otherwise—potentially presented by this case. Of
the three, two (Questions #1 and #2) can be reduced to a single
question: who has sovereignty over the disputed territory? The
other (Question #4) can be restated as: are Israeli settlers
committing genocide? A close reading of the two-hundred-
page complaint confirms that these are the only two potential
political questions raised by the plaintiffs’ claims. To
determine if these two questions are jurisdiction-stripping
political questions, we turn to the Baker factors.
2. Application of Baker Factors
a. First Two Factors
The first Baker factor requires us to determine whether
there is a textually demonstrable commitment of the question
to either the Executive Branch or the Legislative Branch.
15
Baker, 369 U.S. at 217. The second Baker factor requires us to
determine whether there are judicially manageable standards to
answer the question. Id. Together, these factors often dictate
that a case touching on foreign affairs presents a political
question. See Haig v. Agee, 453 U.S. 280, 292 (1981) (“Matters
intimately related to foreign policy and national security are
rarely proper subjects for judicial intervention.”); El-Shifa, 607
F.3d at 841 (“Disputes involving foreign relations . . . are
‘quintessential sources of political questions.’” (quoting
Bancoult v. McNamara, 445 F.3d 427, 433 (D.C. Cir. 2006))).
Indeed, the Constitution expressly commits certain foreign
affairs questions to the Executive or the Legislature. See U.S.
Const. art. I, § 8 (the Congress’s power to “regulate Commerce
with foreign Nations,” “declare War,” “raise and support
Armies,” “provide and maintain a Navy” and “make Rules for
the Government and Regulation of the land and naval Forces”);
U.S. Const. art. II, § 2 (the President’s power to “make
Treaties” and “appoint Ambassadors” and the President’s role
as “Commander in Chief of the Army and Navy of the United
States”). Moreover, resolution of questions touching foreign
relations “frequently turn[s] on standards that defy judicial
application.” Baker, 369 U.S. at 211. But not every case that
involves foreign affairs is a political question. Id. (“[I]t is error
to suppose that every case or controversy which touches
foreign relations lies beyond judicial cognizance.”); Hourani v.
Mirtchev, 796 F.3d 1, 9 (D.C. Cir. 2015) (“Adjudicating the
lawfulness of those acts of a foreign sovereign that are subject
to the United States’ territorial jurisdiction . . . is not an issue
that the Constitution entirely forbids the judiciary to
entertain.”); Ralls Corp. v. Comm. on Foreign Inv. in the U.S.,
758 F.3d 296, 313 (D.C. Cir. 2014) (“[W]e do not
automatically decline to adjudicate legal questions if they may
implicate foreign policy or national security.”). How do we
determine whether a case involving foreign affairs is a political
question? Our en banc court has answered that question: policy
16
choices are to be made by the political branches and purely
legal issues are to be decided by the courts. El Shifa, 607 F.3d
at 842 (“We have consistently held . . . that courts are not a
forum for reconsidering the wisdom of discretionary decisions
made by the political branches in the realm of foreign policy or
national security. In this vein, we have distinguished between
claims requiring us to decide whether taking military action
was ‘wise’—‘a policy choice[] and value determination[]
constitutionally committed for resolution to the halls of
Congress or the confines of the Executive Branch’—and claims
‘[p]resenting purely legal issues’ such as whether the
government had legal authority to act.” (alterations in original)
(quoting Campbell v. Clinton, 203 F.3d 19, 40 (D.C. Cir. 2000)
(Tatel, J., concurring))). This is the distinction on which this
litigation turns.
The first potential political question presented—who has
sovereignty over the disputed territory—plainly implicates
foreign policy and thus is reserved to the political branches. As
the Supreme Court has explained, in our constitutional system
questions regarding the “legal and international status [of
Jerusalem] are . . . committed to the Legislature and the
Executive, not the Judiciary.” Zivotofsky ex rel. Zivotofsky v.
Kerry (Zivotofsky II), 135 S. Ct. 2076, 2081 (2015). What is
true of Jerusalem specifically is true of the entirety of the
disputed territory. In fact, the Executive Branch recently
addressed the question who has sovereignty over the disputed
territory. See Statement by President Trump on Jerusalem
(Dec. 6, 2017), h t t p s : / / w w w . w h i t e h o u s e . g o v / b r i e f i n g s
- s t a t e m e n t s / s t a t e m e n t – p r e s i d e n t – t r u m p – j e r u s a l e m (“We
are not taking a position [on] any final status issues, including
the specific boundaries of the Israeli sovereignty in Jerusalem,
or the resolution of contested borders.” (emphasis added)).
On the other hand, the second potential political question
presented—are Israeli settlers committing genocide—is a
purely legal issue. As noted earlier, one of the bases of the
17
plaintiffs’ complaint is the Alien Tort Statute. The ATS
provides in part that “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.” 28 U.S.C. §
1350. An ATS claim, then, incorporates the law of nations. And
it is well settled that genocide violates the law of nations. Simon
v. Republic of Hungary, 812 F.3d 127, 145 (D.C. Cir. 2016)
(“[T]he relevant international-law violation for jurisdictional
purposes is genocide.”); see also Jesner v. Arab Bank, PLC,
138 S. Ct. 1386, 1401–02 (2018). Genocide has a legal
definition. See United Nations Convention on the Prevention
and Punishment of the Crime of Genocide art. 2, Dec. 9, 1948,
78 U.N.T.S. 277, 280 (defining genocide, in part, as “[k]illing
members of [a national, ethnic, racial or religious group]”
“with intent to destroy [the group], in whole or in part”). Thus,
the ATS—by incorporating the law of nations and the
definitions included therein—provides a judicially manageable
standard to determine whether Israeli settlers are committing
genocide. We recognize that the ATS “enable[s] federal courts
to hear claims in a very limited category defined by the law of
nations and recognized at common law.” Sosa v. Alvarez-
Machain, 542 U.S. 692, 712 (2004). We are well able,
however, to apply the standards enunciated by the Supreme
Court to the facts of this case. 6 The first two Baker factors,
6
This is not to suggest that a statutory claim can never present
a political question. But see El-Shifa, 607 F.3d at 855–57
(Kavanaugh, J., concurring in the judgment). Although a statutory
claim is less likely to present a political question—both because
statutory interpretation is generally committed to the judicial branch
and because statutory language is likely to include judicially
manageable standards—a statutory claim can present a political
question if resolving the claim requires the court to make an integral
policy choice. See id. at 843 (court could not resolve integral policy
choice whether terrorist activity “threatens the security of United
States nationals or the national security of the United States,” an
18
then, suggest that this case presents only one political question:
who has sovereignty over the disputed territory.
b. The Four Prudential Factors
The last four Baker factors—the prudential factors—are
closely related in that they are animated by the same principle:
as a prudential matter, the Judiciary should be hesitant to
conflict with the other two branches. See Baker, 369 U.S. at
217. Traditionally, the existence of one of the prudential factors
indicates that a question is a political question. Schneider, 412
F.3d at 194 (“The Baker analysis lists the six factors in the
disjunctive, not the conjunctive. To find a political question,
we need only conclude that one factor is present, not all.”). In
its most recent discussion of the Baker factors, however, the
Supreme Court did not discuss the prudential factors.
Zivotofsky I, 566 U.S. at 195 (“We have explained that a
controversy ‘involves a political question . . . where there is 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.’”
(quoting Nixon v. United States, 506 U.S. 224, 228 (1993))).
Because the Supreme Court “does not normally overturn, or []
dramatically limit, earlier authority sub silentio,” we do not
interpret the omission as eliminating the prudential factors.
Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18
(2000). Nor can we say, however, that the omission was
unintentional. See Zivotofsky I, 566 U.S. at 202–07
(Sotomayor, J., concurring in part and in the judgment)
(commenting on majority opinion’s omission of prudential
element of a claim under the Antiterrorism and Effective Death
Penalty Act (quoting 8 U.S.C. § 1189(a)(1)(C))); Schneider, 412
F.3d at 196–97 (court could not resolve integral policy choice
whether military action was “wrongful,” one element of wrongful
death claim under Federal Tort Claims Act).
19
factors); id. at 212 (Breyer, J., dissenting) (same); cf. Harbury
v. Hayden, 522 F.3d 413, 418 (D.C. Cir. 2008) (calling first two
factors “most important”). At the very least, Zivotofsky I
suggests that, if the first two Baker factors are not present, more
is required to create a political question than apparent
inconsistency between a judicial decision and the position of
another branch. See 566 U.S. at 194–201 (no political question
notwithstanding Judiciary’s decision that plaintiff’s passport
can list “Jerusalem, Israel” as his birthplace would appear
inconsistent with Executive’s decision—at that time—not to
recognize Jerusalem as part of Israel).
In analyzing the prudential Baker factors, the official
position of the Executive is highly relevant. The Executive is
institutionally well-positioned to understand the foreign policy
ramifications of the court’s resolution of a potential political
question. Accordingly, an Executive Branch opinion regarding
these ramifications is owed deference, no matter what form it
takes. See Hwang Geum Joo v. Japan, 413 F.3d 45, 52 (D.C.
Cir. 2005) (Executive offered opinion in Statement of Interest,
opinion was “compelling” and rendered case nonjusticiable
under political question doctrine”); see also Doe VIII v. Exxon
Mobil Corp., 654 F.3d 11, 62 (D.C. Cir. 2011) (Executive
offered opinion in Statement of Interest and amicus briefs and
court invited it to reassert concerns on remand), vacated on
other grounds, 527 F. App’x 7, 7 (D.C. Cir. 2013); cf. In re
Papandreou, 139 F.3d 247, 252 (D.C. Cir. 1998) (Executive
offered opinion regarding Foreign Sovereign Immunities Act
defense as amicus and court gave its “factual estimation”
“substantial weight” but treated its “legal conclusions” as “no
more authoritative than those of private litigants”). Here, the
Department of Justice expressed its opinion that judicial
resolution of the plaintiffs’ complaint could create an inter-
branch conflict because, “[g]iven the level of political and
military support provided Israel by the American government,
a judicial finding that the Israeli armed forces had committed
20
the alleged offenses would ‘implicitly condemn American
foreign policy by suggesting that the [government’s] support of
Israel is wrongful.’” Gov’t Appellee’s Br. 16. This concern,
although entitled to deference, is now moot as the plaintiffs
have waived any theory of liability based on the conduct of the
Israeli military. See supra, note 5.
Ultimately, we believe that the court would create an inter-
branch conflict by deciding who has sovereignty over the
disputed territory. By answering the question—regardless of
the answer—the court would directly contradict the Executive,
which has formally decided to take no position on the question.
We do not believe, however, that the court would necessarily
create an inter-branch conflict by deciding whether Israeli
settlers are committing genocide. A legal determination that
Israeli settlers commit genocide in the disputed territory would
not decide the ownership of the disputed territory and thus
would not directly contradict any foreign policy choice. In light
of the statutory grounds of plaintiffs’ claims coupled with
Zivotofsky I’s muteness regarding Baker’s four prudential
factors, we believe that whether Israeli settlers are committing
genocide is not a jurisdiction-stripping political question.
Accordingly, although the question who has sovereignty over
the disputed territory does present a “hands-off” political
question, the question whether Israeli settlers are committing
genocide does not.
3. Extricability of the Political Question
Having considered the Baker factors, we conclude that the
plaintiffs’ claims present only one jurisdiction-stripping
political question: who has sovereignty over the disputed
territory. But a claim whose resolution also includes resolution
of a political question can be dismissed on that basis only if the
political question is “inextricable.” Baker, 369 U.S. at 217;
Davis, 478 U.S. at 122; U.S. Dep’t of Commerce, 503 U.S. at
21
456. We believe this political question is extricable. From what
we can tell, the court could rule in the plaintiffs’ favor on all
counts without addressing who has sovereignty over the
disputed territory. Indeed, the court could rule in the plaintiffs’
favor on at least Counts I, II and III, without touching the
sovereignty question, if it concluded that Israeli settlers are
committing genocide. Although the court might have to make
a sovereignty determination in order to resolve some of the
property-based allegations in Count IV, that might not be true
for every allegation. If it becomes clear at a later stage that
resolving any of the plaintiffs’ claims requires a sovereignty
determination, those claims can be dismissed based on the
political question doctrine. As it stands now, however, none of
their claims can be dismissed on this basis.
For the foregoing reasons, we reverse the judgment of
dismissal and remand to the district court for further
proceedings consistent with this opinion.
So ordered.