Al-Tamimi v. Adelson , 264 F. Supp. 3d 69 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
BASSEM AL-TAMIMI, et al., )
)
Plaintiffs, )
)
v. ) Case No. 16-cv-0445 (TSC)
)
SHELDON ADELSON, et al., )
)
and )
)
UNITED STATES OF AMERICA, )
)
Defendants. )
)
MEMORANDUM OPINION
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. ¶¶
1
Plaintiffs sued former Deputy National Security Advisor Elliott Abrams in his individual
capacity. As discussed further below in Section III(B)(1)(a), the United States subsequently
substituted itself as a Defendant pursuant to the Westfall Act, 28 U.S.C. § 2679.
1
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
2
Numerous Defendants have not entered an appearance in this case and thus apparently do not
join the Motion to Dismiss. They include Norman Braman, Daniel Gilbert, Lev Leviev,
American Friends of Har Homa, Karnei Shomron Foundation, G4S PLC, G4S North America,
G4S Israel, RE/MAX Israel – Impact Property Developers Ltd., Africa Israel Investments, Ltd.,
AFI USA, Danya Cebus Ltd., CRH PLC, Heidelberg Cement AG, Veolia Environmental
Services (Israel), Volvo Group, Volvo Bussar AB, Merkavim Transportation Technologies, and
Israel Chemicals Ltd. Nevertheless, the court will address the jurisdictional grounds for
dismissal as if raised by all Defendants.
3
Plaintiffs also cite to numerous federal criminal statutes in their Amended Complaint,
including 18 U.S.C. §§ 1956(b)(2), 981, and 371. However, Plaintiffs do not describe how these
criminal statutes provide the court with jurisdiction in this case.
4
Donor Defendants include Sheldon Adelson, Norman Braman, Lawrence Ellison, Daniel
Gilbert, John Hagee, Lev Leviev, Irving Moskowitz, Haim Saban, and the Irving I. Moskowitz
2
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
Foundation. (Am. Compl. ¶¶ 32–40).
5
Plaintiffs include just one Defendant, former Deputy National Security Advisor Elliott
Abrams, in this category. (Id. ¶ 41). As stated above, supra n.1, the United States has
substituted itself as a party in the place of Abrams.
6
Pro-Settlement Tax-Exempt Entity Defendants 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. (Id. ¶¶ 42–54).
7
Defendant Banks include Bank Leumi Le-Israel B.M., Bank Leumi USA, and Bank Hapoalim
B.M. (Id. ¶¶ 55–56).
8
Defendant Construction/Support Firms Defendants are G4S PLC, G4S North America, G4S
Israel, RE/MAX, RE/MAX Israel – Impact Property Developers Ltd., Africa Israel Investments
Ltd., AFI USA, Danya Cebus Ltd., Access Industries, CRH PLC, Veolia Environment S.A.,
Veolia North America, Veolia Environmental S.A. (Israel) Ltd., Volvo Group, Volvo Bussar
AB, Merkavim Transportation Technologies, Hewlett Packard Enterprise Co., Hewlett-Packard
Enterprise Services of Israel (EDS), Motorola Solutions Inc., Motorola Solutions Israel Ltd., and
Orbital ATK, Inc. (Id. ¶¶ 57–77).
3
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.
4
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
5
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,
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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
7
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
8
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.
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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 plaintiffs’ claims because the Executive had not filed such a
statement). Here, however, unlike in Simon and Doe, the United States has filed such a
statement in its motion to dismiss.
Plaintiffs also cite to Biton I and Biton II, in which the plaintiffs sued the Palestinian
Interim Self-Government Authority and several other Palestinian entities and officials under the
Antiterrorism Act of 1991 (“ATA”), 18 U.S.C. § 2333, “for their alleged involvement in the
bombing of a school bus in the Gaza Strip on November 20, 2000, that killed two passengers . . .
and wounded nine others.” Biton v. Palestinian Interim Self-Gov’t Auth., 310 F. Supp. 2d 172,
175 (D.D.C. 2004) (“Biton I”); see also Biton v. Palestinian Interim Self-Gov’t Auth., 412 F.
Supp. 2d 1 (D.D.C. 2005) (“Biton II”). However, in Biton, the claims were brought under the
ATA, which “created a federal cause of action for acts of ‘international terrorism,’ a precisely-
defined term. . . . By enacting the ATA, both the Executive and Legislative have ‘expressly
endorsed the concept of suing terrorist organizations in federal court.’” Biton I, 310 F. Supp. 2d
at 184 (quoting Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44, 49 (2d Cir. 1991)).9 Therefore,
9
Plaintiffs cite several other district court cases that found the claims before them were not non-
justiciable political questions because they were brought under the ATA rather than the ATS.
Estate of Klieman v. Palestinian Auth., 424 F. Supp. 2d 153 (D.D.C. 2006); Sokolow v. Palestine
10
while the court in Biton I noted that “the backdrop for this case—i.e., the Israeli-Palestinian
conflict—is extremely politicized,” id., it ultimately determined that there were no political
questions (1) for which there were no judicially manageable standards or (2) that would require
the court to make foreign policy determinations that might conflict with, undermine, or
embarrass the political branches. While the Biton cases and this case involve claims arising out
of the Israeli-Palestinian conflict, the former cases involved a statute and claims that are not
implicated here, and are therefore inapplicable here.
Finally, Plaintiffs cite In re South African Apartheid Litig., which involved claims
brought under the ATS. 617 F. Supp. 2d 228 (S.D.N.Y. 2009). The Defendants argued that the
court would have to “second-guess decisions made by the political branches to permit and
encourage commerce with apartheid-era South Africa.” Id. at 284. The court disagreed and
concluded that—despite the United States also filing a Statement of Interest—it was still
“speculative at best” that continuation of the apartheid litigation would have a chilling effect on
doing business with South Africa and would “compromise a valuable foreign policy tool.” Id.However, Plaintiffs’ claims here are notably different, as they would require the court to weigh
in on issues with which the political branches are still grappling—i.e., sovereignty over disputed
lands in the West Bank, Gaza, and East Jerusalem, and the diplomatic response to activities in
those lands, including the continued expansion of settlements.
Ultimately, this court agrees with the court’s reasoning in Doe I and finds that Plaintiffs’
claims—against both the United States and the remaining Defendants—raise non-justiciable
political questions, which deprive this court of subject matter jurisdiction. Accordingly, the
Liberation Org., 583 F. Supp. 2d. 451 (S.D.N.Y. 2008); Linde v. Arab Bank, PLC, 384 F. Supp.
2d 571 (E.D.N.Y. 2005). Because these courts considered a different statutory basis for those
plaintiffs’ claims, the court finds them to be unpersuasive.
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motions to dismiss will be GRANTED.
B. Alternative Jurisdictional Grounds for Dismissal
Though the court concludes that the issues raised in this suit are non-justiciable political
questions, it will nonetheless analyze the additional jurisdictional grounds for dismissal raised by
both the United States and the remaining Defendants.
1. United States’ Motion to Dismiss
a. Substitution of the United States for Elliott Abrams
Prior to filing its motion to dismiss, the United States filed a Notice of Substitution,
indicating that pursuant to the Westfall Act, codified at 28 U.S.C. § 2679, the United States was
substituting itself as a Defendant for Elliott Abrams on Counts I through III of Plaintiffs’
Amended Complaint. (ECF No. 103 (“United States’ Notice”)). The Westfall Act “accords
federal employees absolute immunity from common-law tort claims arising out of acts they
undertake in the course of their official duties.” Osborn v. Haley, 549 U.S. 225, 229 (2007).
This immunity is triggered if the Attorney General or his delegate certifies that “‘the defendant
employee was acting within the scope of his office or employment at the time of the incident out
of which the claim arose.’” Jacobs v. Vrobel, 724 F.3d 217, 219–20 (D.C. Cir. 2013) (quoting
28 U.S.C. § 2679(d)(1)). “Upon certification, the employee is dismissed from the action, [and]
the United States is substituted as the defendant.” Id. at 220 (citing 28 U.S.C. § 2679(d)(1)–(2)).
The Attorney General’s designee certified that Elliott Abrams was acting within the
scope of his employment at the time of Plaintiffs’ allegations. (See ECF No. 103-2 (“Ex. 2 to
United States’ Notice”)). Accordingly, Plaintiffs’ claims, particularly those that were brought
against Abrams while he was a federal employee, are dismissed as to Abrams, and the United
States is substituted as the Defendant. As a result of this substitution, the Federal Tort Claims
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Act (“FTCA”), 28 U.S.C. § 2679(b), applies to some of Plaintiffs’ claims, as they are now
brought against the United States. Subject to certain important and relevant limitations, the
FTCA waives sovereign immunity and grants courts jurisdiction to consider claims against the
United States for “money damages for injury or loss of property or personal injury or death
caused by the negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment.” 28 U.S.C. § 2675(a).
Plaintiffs raise two issues regarding the Attorney General’s certification and the
substitution. First, they argue that Abrams was not acting within the scope of his employment
during the eight-year period in which he served in the Bush Administration. Second, Plaintiffs
argue that they have alleged thirty years of tortious activity by Abrams, and for most of this time
he acted as a private citizen, not as a federal employee.
A plaintiff is permitted to “contest the Attorney General’s scope-of-employment
certification” under the Westfall Act. Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009)
(citing Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995)). “[T]he certification
‘constitute[s] prima facie evidence that the employee was acting within the scope of his
employment.’” Id. (quoting Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662
(D.C. Cir. 2006) (per curiam)). “To rebut the certification and obtain discovery, a plaintiff must
‘alleg[e] sufficient facts that, taken as true, would establish that the defendant[’s] actions
exceeded the scope of [his] employment.’” Id. (quoting Stokes v. Cross, 327 F.3d 1210, 1215
(D.C. Cir. 2003).
“In determining whether an employee acted within the scope of his employment, [courts]
consider the substantive law of the jurisdiction where the employment relationship exists—here,
the law of the District of Columbia.” Jacobs, 724 F.3d at 221 (citing Majano v. United States,
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469 F.3d 138, 141 (D.C. Cir. 2006)). The test in this Circuit is whether the employee’s conduct
“is of the kind he is employed to perform,” “occurs substantially within the authorized time and
space limits,” and “is actuated, at least in part, by a purpose to serve the master.” Id. (citing
Restatement (Second) of Agency § 228 (1958)). “The test is ‘objective’ and is ‘based on all the
facts and circumstances,’” id. (quoting Weinberg v. Johnson, 518 A.2d 985, 991 (D.C. 1986)),
and has been “broadly interpreted.” Id.The Attorney General certified that Abrams acted within the scope of his employment in
the White House based on allegations in the Complaint that he had met or had discussions with
numerous Israeli government officials. (See United States’ Notice; see also Am. Compl. ¶¶ 41,
125). Plaintiffs argue that Abrams acted outside the scope of his employment because he
“encourag[ed]” both donors and entities to “raise and transfer to Israel substantial funds in order
to finance war crimes,” and encouraged “settlement leaders and rogue Israeli army personnel
intent on the illegal confiscation of private Palestinian property.” (ECF No. 112 (“Pls. Opp.”) at
7). Plaintiffs further argue that Abrams exceeded the scope of his employment by engaging in
“classic money laundering.” (Id.). However, Plaintiffs have not alleged any facts to rebut the
prima facie evidence of the Attorney General’s certification. For example, Plaintiffs do not
allege that Abrams’s alleged encouragement of private entities to “finance war crimes” was
undertaken while he served at the White House; instead, Plaintiffs only refer to a thirty-year span
of time during which the alleged conduct took place. Additionally, Plaintiffs offer no factual
assertion that Abrams’s conversations with Israeli governmental officials were outside the scope
of his job on the National Security Council. Finally, their allegation that Abrams engaged in
“classic money laundering” does not appear in their Amended Complaint. The court therefore
finds that Plaintiffs have failed to sufficiently rebut the Attorney General’s certification, and that
14
the United States may be substituted as the proper party for claims against Abrams arising out of
his eight years at the White House.
With regard to Plaintiffs’ argument that the United States cannot be substituted as a party
for all claims against Abrams because they allege thirty years of tortious activity in the years
before and after his federal employment, the United States argues that Plaintiffs’ “operative
allegations” against Abrams involve actions that took place during his tenure in the White
House. The acts alleged during the remaining twenty-two years, which include speeches,
meetings, and other activity before and after his White House employment, on the other hand,
are alleged simply to add context. Plaintiffs do not directly address the United States’
operative/contextual distinction in their Opposition. However, the allegations in their Complaint
clearly include conduct that occurred both before and after Abrams’s time at the White House.
Therefore, while the court will permit the United States’ substitution for Abrams, it does so only
for those claims arising from his eight-year tenure at the White House. With respect to the
remaining twenty-two years of allegations, the court finds that Abrams must be considered as an
individual Defendant in his personal capacity. However, given that this court has already
concluded above in Section III(A) that Plaintiffs’ claims against both the United States and the
individual Defendants must be dismissed, that decision applies also to the claims against Abrams
in his individual capacity, and those claims will also be dismissed.
b. FTCA Jurisdictional Grounds for Dismissal
The United States argues that Plaintiffs’ FTCA claims against it should be dismissed for
four independent reasons: (1) failure to exhaust administrative remedies as required by the
FTCA, (2) lack of a sovereign immunity waiver in the FTCA for claims brought under
international law, (3) application of the foreign-country exception, and (4) application of the
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discretionary-function exception.10
i. Exhaustion of Administrative Remedies
The FTCA expressly bars jurisdiction “unless the claimant[s] . . . have first presented the
claim to the appropriate Federal agency and [their] claim shall have been finally denied by the
agency in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a). If the agency
has not made its “final disposition of a claim within six months after it is filed,” then that lack of
action “shall . . . be deemed a final denial of the claim.” Id. The Supreme Court has held that
the “FTCA bars claimants from bringing suit in federal court until they have exhausted their
administrative remedies.” McNeil v. United States, 508 U.S. 106, 113 (1993). This requirement
is “jurisdictional.” Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 370–71 (D.C. Cir.
1997). Plaintiffs have not indicated whether they have complied with this requirement, and do
not address it in their Opposition. The court therefore finds that this would additionally serve as
grounds for dismissal of their claims against the United States.
ii. Lack of Waiver of Sovereign Immunity
The United States argues that because Congress has not waived sovereign immunity
under the ATS for claims based on violations of customary international law, and the FTCA
likewise does not waive sovereign immunity for such claims, this court lacks subject matter
jurisdiction. The court agrees.
The United States may not be sued without an express waiver of sovereign immunity.
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The United States also argues that the court lacks jurisdiction over Plaintiffs’ Torture Victims
Protection Act claims because the United States was not acting “under actual or apparent
authority, or color of law, of any foreign nation” as required by that statute, and further that the
court lacks jurisdiction over Plaintiffs’ ATS claims because the claims do not sufficiently touch
and concern the United States as required by Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct.
1659, 1669 (2013). Because the court finds that the United States has not waived sovereign
immunity for Plaintiffs’ claims, it need not consider these additional jurisdictional arguments.
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See F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). The ATS, under which Plaintiffs purport to
bring their claims, neither creates a new cause of action against the United States, Sosa v.
Alvarez–Machain, 542 U.S. 692, 713 (2004), nor waives sovereign immunity for claims for
money damages. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C. Cir. 1985). Therefore,
the court has no jurisdiction to hear ATS claims against the United States. As discussed above,
Plaintiffs’ tort claims may instead be analyzed as if brought under the FTCA. However, under
that approach Plaintiffs encounter the same problem: the FTCA similarly does not waive
sovereign immunity for their claims. This is because the United States has not waived sovereign
immunity under that statute for violations of customary international law. See Al Janko v. Gates,
831 F. Supp. 2d 272, 283 (D.D.C. 2011). The FTCA waives sovereign immunity for cases in
which the United States “‘would be liable to the claimant’ as ‘a private person’ ‘in accordance
with the law of the place where the act or omission occurred.’” Meyer, 510 U.S. at 477 (quoting
28 U.S.C. § 1346(b)). The Supreme Court has “consistently held that [this] reference to the ‘law
of the place’ means law of the State,” id. at 478, meaning domestic state tort law. Because
Plaintiffs bring their claims under customary international law, rather than state tort law, their
claims are not covered by the FTCA’s waiver of sovereign immunity, and this court lacks
jurisdiction to consider them. See Al Janko, 831 F. Supp. 2d at 283.
Plaintiffs bring one state common law tort that may be included in the FTCA’s immunity
waiver—civil conspiracy. “Civil conspiracy, of course, is not actionable in and of itself but
serves instead ‘as a device through which vicarious liability for the underlying wrong may be
imposed upon all who are a party to it, where the requisite agreement exists among them.’” Hall
v. Clinton, 285 F.3d 74, 82 (D.C. Cir. 2002) (quoting Riddell v. Riddell Wash. Corp., 866 F.2d
1480, 1493 (D.C. Cir. 1989)). If the alleged underlying wrong is not actionable, then a
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conspiracy to commit that wrong “is not actionable either.” Id. at 83. Because the court has no
jurisdiction over the underlying wrongs which form the basis of the civil conspiracy claim, the
court similarly has no jurisdiction over an independent civil conspiracy claim against the United
States under the FTCA.
iii. FTCA’s Foreign-Country Exception
The FTCA also contains an explicit exception to the United States’ sovereign immunity
waiver for “[a]ny claim arising in a foreign country.” 28 U.S.C. § 2680(k). The Supreme Court
has held “that the FTCA’s foreign country exception bars all claims based on any injury suffered
in a foreign country, regardless of where the tortious act or omission occurred.” Sosa, 542 U.S.
at 712. The D.C. Circuit has further held that, following Sosa, a plaintiff “‘cannot plead around
the FTCA’s foreign-country exception simply by claiming injuries . . . that are derivative of the
foreign-country injuries at the root of the complaint.’” Gross v. United States, 771 F.3d 10, 12
(D.C. Cir. 2014) (quoting Harbury v. Hayden, 522 F.3d 413, 423 (D.C. Cir. 2008)). The United
States therefore argues that because Plaintiffs allege that they were injured in the West Bank,
Gaza, East Jerusalem, and/or other settlement areas, the foreign-country exception must bar these
claims, regardless of whether Plaintiffs allege the tortious conduct occurred in the United States
or abroad. Plaintiffs did not address this argument in their opposition. Given the directives of
the Supreme Court and the D.C. Circuit, the court concludes that the FTCA’s foreign-country
exception bars all of Plaintiffs’ claims against the United States.
iv. FTCA’s Discretionary Function Exception
The United States argues that Plaintiffs’ claims are also barred by the FTCA’s express
exception for discretionary functions or duties, which bars:
Any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not
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such statute or regulation be valid, or based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or not the discretion
involved be abused.
28 U.S.C. § 2680(a). This exception “marks the boundary between Congress’ willingness to
impose tort liability upon the United States and its desire to protect certain governmental
activities from exposure to suit by private individuals,” United States v. Varig Airlines, 467 U.S.
797, 808 (1984), and “‘prevent[s] judicial second-guessing of legislative and administrative
decisions grounded in social, economic, and political policy through the medium of an action in
tort.’” Loumiet v. United States, 828 F.3d 935, 941 (D.C. Cir. 2016) (quotation marks omitted).
The Supreme Court has articulated a two-part test to determine whether the discretionary
function exception applies. See United States v. Gaubert, 499 U.S. 315 (1991); Berkovitz v.
United States, 486 U.S. 531 (1988); Varig Airlines, 467 U.S. 797. The first prong requires the
court to consider whether the challenged acts “are discretionary in nature” and “‘involve an
element of judgment or choice.’” Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536).
If this first prong is met, the court proceeds to the second prong, in which it must consider
“‘whether that [conduct] is of the kind that the discretionary function exception was designed to
shield.’” Id. at 322–23 (quoting Berkovitz, 486 U.S. at 536).
With respect to the first prong, the challenged acts are not discretionary if a “federal
statute, regulation, or policy specifically prescribes a course of action for an employee to
follow.” Berkovitz, 486 U.S. at 536. Alternatively, an act is discretionary—as opposed to
ministerial—“if it involves judgment, planning, or policy decisions.” KiSKA Constr. Corp.,
U.S.A. v. WMATA, 321 F.3d 1151, 1159 n.9 (D.C. Cir. 2003). In other words, an action is
discretionary unless the statute, regulation, or policy leaves “‘no room for choice.’” Banneker
Ventures, LLC v. Graham, 798 F.3d 1119, 1143 (D.C. Cir. 2015) (quoting Gaubert, 499 U.S. at
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324). Plaintiffs’ claims involving Elliott Abrams’s actions while he was a federal employee
largely involve communications between Abrams and Israel government officials. (See Am.
Compl. ¶¶ 41, 125, 134). Plaintiffs do not articulate any statute, regulation, or policy that leaves
“no room for choice” regarding how Abrams was to communicate and interact with foreign
officials in his role as Deputy National Security Advisor. Instead, they argue only that “classic
money laundering . . . [is] well outside the scope of an official’s discretionary funding function.”
(Pls. Opp. at 7). However, as noted above, Plaintiffs do not provide any factual allegations
supporting their claim of money laundering, but instead allege only that Abrams “promoted” or
“encouraged” the development of settlements. Faced with such threadbare assertions, the court
concludes that the challenged acts were discretionary.
Next, the court considers in the second prong whether the discretionary function
exception applies based on whether the acts are “susceptible to policy judgment,” Banneker
Ventures, 798 F.3d at 1139, or “whether the actions or decisions ‘were within the range of choice
accorded by federal policy and law and were the results of policy determinations.’” Loumiet, 828
F.3d at 942 (quoting Berkovitz, 486 U.S. at 538). The discretionary function exception therefore
“‘insulates the Government from liability if the action challenged in the case involves the
permissible exercise of policy judgment,’” id. (quoting Berkovitz, 486 U.S. at 537), but “[a]n
employee of the government acting beyond his authority is not exercising the sort of discretion
the discretionary function exception was enacted to protect.’” Id. (quoting Red Lake Band of
Chippewa Indians v. United States, 800 F.2d 1187, 1196 (D.C. Cir. 1986)). As noted in Section
III(A), the United States has a complex, evolving, and sensitive relationship with the Israeli
government and the Palestinian authorities, and the tensions in the region have been the subject
of diplomatic maneuvering for decades. Plaintiffs do not appear to argue, nor could they, that
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Abrams’s discussions with Israeli government officials in his role as a Deputy National Security
Advisor were not the result of policy judgments and determinations. Because such foreign
policy discussions are certainly grounded in the United States’ foreign policy decision-making in
the region, Abrams’s acts fall squarely within the discretionary function. This exception
provides yet another basis for dismissal of Plaintiffs’ claims against the United States.
2. Remaining Defendants’ Motion to Dismiss
As explained above, the court has concluded that the claims against the remaining
Defendants must be dismissed because they raise non-justiciable political questions.
Nonetheless, the court will also consider the remaining Defendants’ argument that these claims
are also non-justiciable under the act of state doctrine.
The act of state doctrine “prevents federal courts from ‘declar[ing] invalid . . . the official
act of a foreign sovereign.’” Hourani v. Mirtchev, 796 F.3d 1, 11 (D.C. Cir. 2015) (quoting W.S.
Kirkpatrick & Co., Inc. v. Envtl. Tectonics Corp., 493 U.S. 400, 405 (1990)). Therefore, the
doctrine is a “close cousin of the political question doctrine” and “prevents a court from deciding
a case ‘when the outcome turns upon the legality or illegality . . . of official action by a foreign
sovereign performed within its own territory.’” Doe I, 400 F. Supp. 2d at 113 (quoting Owens v.
Republic of Sudan, 374 F. Supp. 2d 1, 26 (D.D.C. 2005). “[T]he act of state doctrine is based on
prudential separation of powers concerns, as well as notions of sovereign respect and
intergovernmental comity[,] [and] reflects the judiciary’s reluctance to complicate foreign affairs
by validating or invalidating the actions of foreign sovereigns.” Id. (citations omitted).
However, “[a]ct of state issues only arise when a court must decide—that is, when the outcome
of the case turns upon—the effect of official action by a foreign sovereign. When that question
is not in the case, neither is the act of state doctrine.” W.S. Kirkpatrick, 493 U.S. at 406
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(emphasis in original). “The type of official act that implicates the act of state doctrine is that
which is ‘by nature distinctly sovereign, i.e., conduct that cannot be undertaken by a private
individual or entity.’” Doe, 69 F. Supp. 3d at 87 (quoting McKesson Corp. v. Islamic Republic
of Iran, 672 F.3d 1066, 1073 (D.C. Cir. 2012)).
Here, Plaintiffs have not sued Israel or any Israeli government officials, only private
individuals and entities. However, they allege that these Defendants have encouraged or
financed violent torts committed both by Israeli soldiers and individual settlers; indeed, for some
Defendants, their alleged financial contributions to the Israel Defense Forces appear to form the
entire basis for Plaintiffs’ claims against them. Therefore, Defendants argue that consideration
of Plaintiffs’ claims, with respect to at least some of the Defendants, would require this court to
adjudicate whether Israel or its armed forces committed war crimes, genocide, trespass, and other
tortious conduct. Though Plaintiffs’ allegations certainly involve numerous references to Israeli
soldiers, it is not clear to the court at this stage to what extent it “must decide” the legality of
Israeli official actions, particularly given that the Defendants themselves are private individuals
or entities, and the acts they are alleged to have undertaken cannot be said to be “distinctly
sovereign.” As a result, the court declines to find that the act of state doctrine warrants
dismissal.
IV. CONCLUSION
The Palestinian and Palestinian-American Plaintiffs in this lawsuit allege that they have
experienced immense loss of life, liberty, and property over the last several decades, and they
seek justice and compensation for violence they have experienced. At the core of their Amended
Complaint, however, is the request for this court to adjudicate and resolve the lawfulness of the
development of Israeli settlements in Gaza, the West Bank, and East Jerusalem stretching over
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thirty years into the past. This issue, both close to the heart of the ongoing Israeli-Palestinian
conflict and central to the United States’ foreign policy decision-making in the region, is simply
inappropriate for this court to resolve. Instead, these issues must be decided by the political
branches. As a result, for the foregoing reasons, this court will GRANT both motions to dismiss.
Date: August 29, 2017
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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