Schermerhorn v. State of Israel

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
DAVID SCHERMERHORN, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 16-0049 (ABJ)
)
STATE OF ISRAEL, et al., )
)
Defendants. )
____________________________________)

MEMORANDUM OPINION

Plaintiffs David Schermerhorn, Mary Ann Wright, Huwaida Arraf, and Margriet

Deknopper have sued the State of Israel, and its Ministries of Defense, Foreign Affairs, Justice,

and Public Security. On May 31, 2010, plaintiffs were passengers on the Challenger I, one of a

group of ships seeking to draw public attention to, and to penetrate, the Israeli naval blockade of

the Gaza Strip that was in effect at the time. They seek redress for the physical and emotional

injuries that they allege they suffered when the Israeli military boarded their ship in international

waters. See Compl. [Dkt. # 1] ¶¶ 1–2, 7, 22–23, 26.

Plaintiffs allege that Israel’s actions constituted war crimes in violation of international

law, and their complaint includes four counts based on that theory: Torture (Count 1), Cruel and

Inhuman Treatment (Count 2), Mutilation or Maiming (Count 3), and Intentionally Causing

Serious Bodily Injury (Count 4). Id. ¶¶ 47–62. The complaint also includes five tort claims:

Arbitrary Arrest and Detention (Count 5), False Imprisonment (Count 6), Assault and Battery

(Count 7), Intentional Infliction of Emotional Distress (Count 8), and Conversion (Count 9). Id.

¶¶ 63–78.
 Israel is a foreign sovereign. Like any other country, it may only be sued in courts in the

United States under certain limited circumstances defined by statute. 1 Israel maintains that there

has been no waiver of its sovereign immunity that could make this case possible, and it has moved

to dismiss on that ground and others under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2),

and 12(b)(6). Defs.’ Rule 12(b) Mot. to Dismiss [Dkt. # 17] (“Defs.’ Mot.”); Defs.’ Mem. in Supp.

of Def.’s Mot. [Dkt. # 17-1] (“Defs.’ Mem.”). Because the Court finds that Israel has not waived

its sovereign immunity under either the tort exception or the terrorism exception to the Foreign

Sovereign Immunities Act, 28 U.S.C. § 1602, et seq. (“FSIA”), it will grant defendants’ motion

and dismiss this case for lack of subject matter jurisdiction. This decision is based solely on the

application of statutory principles, and it is not premised upon any consideration of, or

determination concerning, whether either the blockade or the military action was justified.

BACKGROUND

This case arises out of the history of the troubled relationship of the Israelis and the

Palestinians, a complex and controversial subject that is not well suited to the sort of

summarization that one would include in the “background” section of a legal opinion. Suffice it

to say that the events described in the complaint relate to the ongoing dispute concerning the

1 Israel’s ministries enjoy sovereign immunity as well. See 28 U.S.C. § 1603(a) (defining
“foreign state” to include a “political subdivision of a foreign state or an agency or instrumentality
of a foreign state”).

2
disposition of the Gaza Strip in the wake of the 1967 Six Day War, the creation of the Palestinian

Authority in 1994, and the series of violent conflicts and fragile ceasefires that followed. 2

Plaintiffs were a part of what was called the “Gaza Freedom Flotilla,” which aimed “to

draw international public attention to the situation in the Gaza Strip and the effect of the blockade,

to break the blockade, and to deliver humanitarian assistance and supplies to Gaza.” Compl. ¶ 24.

The flotilla consisted of six vessels: the M.V. Mavi Marmara, a passenger ship sailing under the

flag of the Union of Comoros; the M.V. Defne Y, a cargo vessel sailing under the flag of the

Republic of Kiribati; the M.V. Gazze, a cargo vessel sailing under the flag of the Republic of

Turkey; the M.V. Sfendoni, a passenger ship sailing under the flag of the Hellenic Republic of

Greece; and the Challenger I, a passenger ship sailing under the flag of the United States of

America. Compl. ¶ 25. Plaintiffs allege that on May 31, 2010, the IDF “unlawfully intercepted

and attacked” the six vessels. Compl. ¶ 2. Since the claims in this case relate solely to the events

that took place on the Challenger I, the Court will not set forth the facts concerning the interception

of the other vessels.

The Challenger I carried seventeen passengers, including crew; they were American,

British, Irish, Australian, Dutch, Belgian, and Polish nationals who worked as humanitarian

workers, medics, and journalists. Compl. ¶ 29. According to plaintiffs, the vessel was carrying

humanitarian aid, including medical equipment and supplies, in addition to “a large amount of

2 The Court must decide this matter based on the facts alleged by plaintiffs in the complaint,
but it notes that the investigation commissioned by the Israeli government in the wake of the events
at issue in this case, which is referenced in the complaint, outlines many of the events that preceded
the first steps detailed in the complaint. See The Public Commission to Examine the Maritime
Incident of 31 May 2010 (Jan. 2011), http://www.turkel-committee.gov.il/files/wordocs/
8808report-eng.pdf (“Turkel Report”). Its account differs from plaintiffs’ in several respects.

3
media equipment” such as video cameras, recorders, phones, and GPS locators. Id. ¶ 30. 3

Plaintiffs allege that all of the individuals on the flotilla, including those on the Challenger I, were

“subject to security checks for weapons before departure,” and that “[a]ll of the passengers and

crew . . . were unarmed during their entire journey.” Id. ¶¶ 26, 31.

On May 31, 2010, as the flotilla approached the shore, the Israeli navy took action to

enforce the blockade of the Gaza Strip and board the vessels. 4 According to the complaint, the

boarding of the Challenger I was marked by violence. See Compl. ¶¶ 41–46. Plaintiffs allege that

“at least one stun grenade was used before the IDF soldiers sought to board” the ship. Id. ¶ 41.

“The grenade exploded one foot from Plaintiff Schermerhorn’s face, leaving him partly blinded in

one eye.” Id. The complaint states that the soldiers fired paintball and rubber bullets directly at

the passengers while they were boarding the vessel; plaintiff Deknopper was shot in the face with

a rubber bullet that broke her nose, and another passenger was shot five times in the back with

rubber bullets. Id. ¶ 42. Once onboard, the soldiers detained all of the passengers. Id. ¶ 43.

Plaintiff Arraf alleges that he was “forcefully pulled off the stairs and forced to the deck,” where

a soldier “slammed [his head] against the deck” and stood on it. Id. Plaintiff Arraf and another

3 The Turkel Report states that “[n]o humanitarian supplies were found” on the Challenger
I, Turkel Report at 181–82, but the Court assumes the truth of plaintiffs’ allegations for purposes
of this motion.

4 According to the Turkel Report, Israel’s attempt to take over the Mavi Marmara was met
with “violent resistance,” including the use of “wooden clubs, iron rods, slingshots, knives
. . . [and] firearms.” Turkel Report at 149. The Israelis responded with non-lethal force at first,
and then with lethal force. See id. at 142–172. Ten civilian passengers of American and Turkish
nationality who were on the Mavi Marmara were killed, Compl. ¶ 36, and a number of passengers
and IDF personnel were injured. Turkel Report at 172–73. The attempt to take over the
Challenger I was met with significantly less resistance. See id. at 181–82.

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passenger were “forced to kneel with tight handcuffs while hooded for an extended period of time,

despite complaining of breathing difficulties.” Id.

After the Israelis took control of the Challenger I, they directed the ship to the Israeli port

of Ashdod. Compl. ¶ 38. Plaintiffs allege that while on route to Ashdod, they were assaulted,

handcuffed, and forcibly detained; that they were denied toilets and medical care; and that their

personal property, including “all media equipment and film footage,” was confiscated and never

returned. Id. ¶ 45. When the Challenger I arrived in Ashdod, “[s]everal passengers, including

Plaintiff Wright[,] were treated violently when they refused to leave the ship.” Id. ¶ 46.

On January 11, 2016, plaintiffs filed this nine-count action against the State of Israel and

its Ministries of Defense, Foreign Affairs, Justice, and Public Security. Compl. Count 1, brought

by plaintiffs Arraf and Deknopper, alleges that defendants committed the war crime of torture

when they banged plaintiff Arraf’s head against the deck, stood on her head, hooded her for an

extended period of time, and groped her, and when they shot plaintiff Deknopper in the face with

a rubber bullet. Compl. ¶¶ 48–51. In Count 2, all plaintiffs allege that they were subjected to the

war crime of cruel and inhuman treatment. Id. ¶¶ 53–55. Plaintiff Schermerhorn alleges in Count

3 that the use of the grenade, which caused him to partially lose sight in one eye, constitutes the

war crime of mutilation or maiming. Id. ¶¶ 57–59. Plaintiffs Schermerhorn, Arraf, and Deknopper

allege in Count 4 that the IDF’s conduct intentionally caused them serious bodily injury, a war

crime under international law. Id. ¶¶ 61–62. All plaintiffs claim that they were subjected to

arbitrary arrest and detention (Count 5), false imprisonment (Count 6), assault and battery at the

hands of the IDF (Count 7), and the conversion of their personal property (Count 9). Id. ¶¶ 64–

73; 76–78. Finally, in Count 8, all plaintiffs seek damages for intentional infliction of emotional

distress. Id. ¶ 75.

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 Defendants moved to dismiss on August 8, 2016. Defs.’ Mot.; Defs.’ Mem. They argue

principally that the Court lacks jurisdiction because Israel and its ministries are immune from suit

under the FSIA, Defs.’ Mem. at 12–28, and that even if Israel were not immune, the Court lacks

jurisdiction under the political question doctrine and the act of state doctrine. Id. at 28–37. They

also argue that each count in the complaint fails to state a claim under Rule 12(b)(6), and that the

action should be dismissed under Rule 12(b)(2) under the doctrine of forum non conveniens so that

the claims can be resolved in Israel. Id. at 37–45. Plaintiffs opposed the motion, Pls.’ Mem. of P.

& A. in Opp. to Defs.’ Mot. [Dkt. # 22] (“Pls.’ Opp.”), defendants replied in support of their

motion, Defs.’ Reply Mem. in Supp. of Defs.’ Mot. [Dkt. # 23] (“Defs.’ Reply”), and plaintiffs

were granted leave to file a brief sur-reply. Pls.’ Sur-Reply in Further Opp. to Defs.’ Mot. [Dkt.

# 26] (“Pls.’ Sur-Reply”).

On November 21, 2016, the United States submitted a Statement of Interest in this case

pursuant to 28 U.S.C. § 517, taking the position “that neither exception to immunity invoked by

plaintiffs removes Israel’s immunity under FSIA in this case.” Statement of Interest of the U.S.

[Dkt. # 28] (“SOI”). Each side had an opportunity to respond to the government’s position. Min.

Order (Nov. 28, 2016); Pls.’ Resp. to SOI [Dkt. # 29] (“Pls.’ SOI Opp.”). Because the Court agrees

with defendants and the United States that it lacks jurisdiction under the FSIA, the case will be

dismissed and the Court need not reach any of the other issues.

STANDARD OF REVIEW

Before the Court may turn to the merits of plaintiffs’ allegations, it must first ensure that it

has jurisdiction to hear this case.

Federal courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute, which is not to be expanded
by judicial decree. It is to be presumed that a cause lies outside this limited

6
 jurisdiction, and the burden of establishing the contrary rests upon the party
asserting jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted).

In addition, “‘[i]t is axiomatic that subject matter jurisdiction may not be waived, and that courts

may raise the issue sua sponte.’” NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir. 2008),

quoting Athens Cmty. Hosp., Inc. v. Schweiker, 686 F.2d 989, 992 (D.C. Cir. 1982). Indeed, a

federal court must raise the issue because it is “forbidden – as a court of limited jurisdiction – from

acting beyond [its] authority.” Id., citing Akinseye v. District of Columbia, 339 F.3d 970, 971

(D.C. Cir. 2003).

Under Federal Rule of Civil Procedure 12(b)(1), plaintiffs bear the burden of establishing

jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561

(1992); Shekoyan v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). “[B]ecause subject-

matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement . . . no action of the parties

can confer subject-matter jurisdiction upon a federal court.’” Akinseye, 339 F.3d at 971, quoting

Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

In ruling upon a motion to dismiss for failure to state a claim, a court may ordinarily

consider only “the facts alleged in the complaint, documents attached as exhibits or incorporated

by reference in the complaint, and matters about which the Court may take judicial notice.”

Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997). When considering a motion to

dismiss for lack of jurisdiction, however, the court “is not limited to the allegations of the

complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds,

482 U.S. 64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems

appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v.

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D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l

Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharm., Inc. v. FDA,

402 F.3d 1249, 1253 (D.C. Cir. 2005).

ANALYSIS

Under the Foreign Sovereign Immunities Act, “a foreign state is presumptively immune

from the jurisdiction of United States courts,” and “unless a specified exception applies, a federal

court lacks subject-matter jurisdiction over a claim against a foreign state.” Saudi Arabia v.

Nelson, 507 U.S. 349, 355 (1993); see 28 U.S.C. § 1604 (“a foreign state shall be immune from

the jurisdiction of the courts of the United States and of the States except as provided in sections

1605 to 1607 of this chapter”). The exceptions set forth in the statute provide “the sole basis for

obtaining jurisdiction over a foreign state in the courts of this country.” OBB Personenverkehr

AG v. Sachs, 136 S. Ct. 390, 393 (2015), quoting Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428, 443 (1989) (internal quotation marks omitted); see also Simon v. Republic of

Hungary, 812 F.3d 127, 135 (D.C. Cir. 2016). Because “subject matter jurisdiction in any such

action depends on the existence of one of the specified exceptions . . . [a]t the threshold of every

action in a district court against a foreign state . . . the court must satisfy itself that one of the

exceptions applies.” Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 493–94 (1983); see

also Belize Social Dev. Ltd. v. Government of Belize, 794 F.3d 99, 101 (D.C. Cir. 2015) (describing

the FSIA’s terms as “absolute”); Jerez v. Republic of Cuba, 775 F.3d 419, 423–24 (D.C. Cir. 2014),

citing Mwani v. bin Laden, 417 F.3d 1, 15 (D.C. Cir. 2005). And given the “comprehensive”

nature of the FSIA, “any sort of immunity defense made by a foreign sovereign in an American

court must stand on the Act’s text. Or it must fall.” Republic of Argentina v. NML Capital, Ltd.,

134 S. Ct. 2250, 2255–56 (2014).

8
I. The applicable jurisdictional standard
Plaintiffs predicate their assertion of the Court’s jurisdiction on two exceptions to the FSIA:

the non-commercial tort exception, 28 U.S.C. § 1605(a)(5), and the terrorism exception, 28 U.S.C.

§ 1605A. When a defendant contests the legal sufficiency of plaintiff’s jurisdictional claims, “the

standard is similar to that of Rule 12(b)(6), under which dismissal is warranted if no plausible

inferences can be drawn from the facts alleged that, if proven, would provide grounds for relief.”

Prince v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 93 (D.C. Cir. 2002).

Plaintiffs cite de Csepel v. Republic of Hungary, 169 F. Supp. 3d 143 (D.D.C. 2016) for

the proposition that, “[w]here, as here, the claims on the merits set out in the Complaint directly

mirror the jurisdictional standard, Plaintiffs ‘need only show that [their] claim is ‘non-frivolous’

at the jurisdictional stage and need not definitely prove [their] claim as [they] would at the merits

stage.’” Pls.’ Opp. at 7, quoting de Csepel, 169 F. Supp. 3d at 156. But this case does not present

the situation discussed in de Csepel, and a closer look at the case law reveals that the more lenient

standard is not applicable in this case.

The court in de Csepel pointed to the D.C. Circuit’s opinions in Simon v. Republic of

Hungary, 812 F.3d at 141, and Helmerich & Payne International Drilling Co. v Bolivarian

Republic of Venezuela, 784 F.3d 804, 812 (D.C. Cir. 2015), when it noted that under certain

circumstances, a lower standard of proof could apply at the jurisdictional stage. 5 de Csepel, 169

F.3d at 156. In Simon, the court explained:

In prior FSIA cases involving the expropriation exception, this court has
held that, in assessing whether “rights in property taken in violation of
international law are in issue,” the plaintiff need only make a “non-

5 The Supreme Court is currently considering whether the D.C. Circuit’s application of the
non-frivolous standard in expropriation cases is appropriate, or whether expropriation cases should
be assessed under the usual jurisdictional standard. See Helmerich & Payne Int’l Drilling Co. v.
Bolivarian Republic of Venezuela, 784 F.3d 804 (D.C. Cir. 2015), cert. granted, 136 S. Ct. 2539
(2016).
9
 frivolous” showing at the jurisdictional stage. That is because, in those
cases, the plaintiff’s claim on the merits directly mirrored the jurisdictional
standard.

Simon, 812 F.3d at 140 (emphasis added), quoting 28 U.S.C. 1605(a)(3). The court then went on

to explain that the non-frivolous standard would not apply to the dispute before it:

When, as here, the jurisdictional and merits inquiries do not overlap, there
is no occasion to apply the “exceptionally low bar” of non-frivolousness at
the jurisdictional stage. To establish jurisdiction in such a situation, we
therefore ask for more than merely a non-frivolous argument. Instead, we
assess whether the plaintiffs’ allegations satisfy the jurisdictional standard.

Id. at 141 (internal citations omitted). This admonition was repeated in de Csespel:

Thus, when facts independent of the necessary elements of a plaintiff’s
substantive cause of action must be established, courts “ask for more than a
non-frivolous argument.”

169 F. Supp. 3d at 156, quoting Simon, 812 F. 3d at 141.

Here, plaintiffs are not invoking the expropriation exception, and the merits inquiry does

not mirror the jurisdictional standard. In Counts 1 through 4, plaintiffs allege that certain acts

committed by the defendants constitute causes of action “defined in international instruments and

treaties . . . as well as customary international law,” Compl. ¶¶ 51, 55, 59, 62, and in Counts 5

through 9, they allege that the facts add up to common law torts. See id. ¶¶ 66, 70, 73, 75, 78. The

elements that must be established to give rise to jurisdiction under the non-commercial tort

exception are: a demand for money damages; a claim against a foreign state for personal injury or

death, or damage to or loss of property; occurring in the United States; and caused by the tortious

act of the foreign state or an official or employee of the foreign state while acting in the scope of

employment. 28 U.S.C. § 1605(a)(5). And the elements that must be satisfied under the terrorism

exception are: a demand for money damages; a claim against a foreign state for personal injury or

death; caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the

10
provision of material support; if (1) the foreign state was designated as a state sponsor of terrorism

at the time of the act or as a result of the act; (2) the claimant or victim was a U.S. national, a

member of the armed forces, a U.S. government employee or a government contractor; and (3) the

claimant afforded the foreign state an opportunity to arbitrate, if the act occurred in the foreign

state against which the claim has been brought. 28 U.S.C. § 1605A(a). Since the disputed elements

in this case – that is, whether, for purposes of the commercial tort exception, the alleged torts

occurred “in the United States,” and whether, for purposes of the terrorism exception, the foreign

country being sued has been designated a state sponsor of terrorism at the time of the act – are not

elements of any of the underlying claims, the Court will not apply the lower threshold of proof to

those inquiries. This is not inconsistent with the decision by the de Csepel court to apply the less

stringent standard to the one element of the jurisdictional inquiry that was also necessary to

establish the underlying claim, and to that element only. See 169 F. Supp. 3d at 157. 6

II. Because the alleged torts did not occur within the United States, the non-commercial
tort exception does not apply.
Plaintiffs contend first that the Court may exercise jurisdiction over each count in the

complaint under the non-commercial tort exception to the FSIA. See Compl. ¶ 80. That exception

provides:

A foreign state shall not be immune from the jurisdiction of courts of the
United States or of the States in any case . . . in which money damages are
sought against a foreign state for personal injury or death, or damage to or
loss of property, occurring in the United States and caused by the tortious
act or omission of that foreign state or of any official or employee of that
foreign state while acting within the scope of his office or employment . . . .

6 The parties’ difference of opinion about the evidentiary standard at this stage does not bear
on the outcome of this motion in any event, since the grant of the motion to dismiss rests on legal
grounds and is not premised on the strength of plaintiffs’ factual showing.
11
28 U.S.C. § 1605(a)(5). 7

“Congress’ primary purpose in enacting § 1605(a)(5) was to eliminate a foreign state’s

immunity for traffic accidents and other torts committed in the United States, for which liability is

imposed under domestic tort law.” Amerada Hess, 488 U.S. at 439–40. The D.C. Circuit has

cautioned against converting the non-commercial tort exception “into a broad exception for all

alleged torts that bear some relationship to the United States.” Asociacion de Reclamantes v.

United Mexican States, 735 F.2d 1517, 1525 (D.C. Cir. 1984). The exception only applies to

personal injury or other harm “occurring in the United States,” and the FSIA defines “United

States” to include “all territory and waters, continental or insular, subject to the jurisdiction of the

United States.” 28 U.S.C. § 1603(c). 8

Plaintiffs maintain that a vessel flying the American flag falls within this definition, Pl.’s

Opp. at 9–16, but their argument does not accord with the law in this circuit. In Persinger v.

Islamic Republic of Iran, 729 F.2d 835, 837–39 (D.C. Cir. 1984), the D.C. Circuit addressed

whether a claim against Iran arising out of the hostage crisis at the American embassy in Tehran

could be heard in a United States court under the non-commercial tort exception. The D.C. Circuit

7 There are two exceptions to the non-commercial tort exception. The first, known as the
discretionary function exception, provides that a foreign state’s immunity is not waived with
respect to “any claim based upon the exercise or performance or the failure to exercise or perform
a discretionary function regardless of whether the discretion be abused.” Id. § 1605(a)(5)(A). And
the second, known as the intentional tort exception, provides that immunity is not waived for
certain enumerated intentional torts, such as slander, misrepresentation, and deceit. Id. § (a)(5)(B).
Because the Court concludes that the alleged torts did not occur “in the United States,” it need not
reach defendants’ alternative argument that the discretionary function exception would be an
additional bar to plaintiffs’ claims. See Defs.’ Mem. at 23–26.

8 The term “insular” in this context refers to “those islands that are part of the United States
or its possessions.” Amerada Hess, 488 U.S. at 440.
12
explained that the statutory definition of “United States” that appears in § 1603(c) was meant to

limit the Court’s jurisdiction:

Congress used the words “continental or insular” to modify the scope of the
phrase “all territory and waters . . . subject to the jurisdiction of the United
States.” The latter phrase, if it stood alone, might lead to the conclusion
that any territory over which the United States exercises any form of
jurisdiction constitutes the “United States” for purposes of the FSIA. Since
the United States has some jurisdiction over its embassy in Iran, it would
then follow that Iran had no immunity for tortious acts committed on the
Embassy grounds. We think, however, that the modifying words make this
construction too awkward to be countenanced. If the definition meant all
territory subject to any form of United States jurisdiction, the words
“continental or insular” would be surplusage: all territory is continental or
insular. The modifying phrase is rather clearly intended to restrict the
definition of the United States to the continental United States and such
islands that are part of the United States or are its possessions.
Id. at 839. Because “[t]he ground upon which our Embassy stands in Tehran does not fall within

[the statutory] definition,” the Court concluded that “Iran enjoy[ed] sovereign immunity” in that

case. Id. at 837.

Applying this reasoning, the definition of “in the United States” would not include an

American vessel in international waters. Plaintiffs attempt to distinguish Persinger by arguing

that unlike an embassy, which is fixed within the territory of the receiving state, a flagged vessel

is deemed to be within the territory of the country whose flag is flown onboard as a matter of

international law. Pls.’ Opp. at 9–15, citing The Case of the S.S. Lotus [Fr. v. Turk.], 1927 P.C.I.J.

ser. A. No. 10 at 45, http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm (“[I]t

has appeared expedient to extend to merchant vessels on the high seas the jurisdiction of the

authorities of the State whose flag they fly. These vessels and their crews are answerable only to

the law of the flag, a situation which is often described by saying . . . that these vessels constitute

a detached and floating portion of the national territory.”).

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 While the “floating island” theory may be “a principle that antedates the Republic,” Pls.’

Opp. at 13, quoting United States v. Riker, 670 F.2d 987, 988 (11th Cir. 1982), the Supreme Court

has explained that the theory “is a figure of speech, a metaphor,” and the Court has made clear that

when the law uses the term “territory” in a “physical and not a metaphorical sense,” it is referring

to “areas or districts having fixity of location and recognized boundaries.” Cunard S.S. Co. v.

Mellon, 262 U.S. 100, 122–23 (1923) (holding that a U.S.-flagged vessel was not in the “territory”

of the United States for purposes of the Eighteenth Amendment’s prohibition on the sale of

intoxicating liquors to or from “territory subject to the jurisdiction” of the United States).

The Second Circuit rejected reasoning similar to that advanced by the plaintiffs in Smith v.

Socialist People’s Libyan Arab Jamahiriya. See 101 F.3d 239 (2d Cir. 1996). The plaintiffs in

Smith, the families of a group of passengers and employees aboard Pan Am Flight 103, sued Libya

for its alleged complicity in the bombing of that flight over Lockerbie, Scotland. Id. at 241. Their

theory was that “Pan Am Flight 103 should be considered to have been ‘territory’ of the United

States for purposes of the FSIA . . . rely[ing] on the principle that a nautical vessel ‘is deemed to a

be part of the territory’ of ‘the sovereignty whose flag it flies.’” Id. at 246, quoting United States

v. Flores, 289 U.S. 137, 155 (1933). The Second Circuit disagreed and explained:

Even if we assume, without deciding, that for some purposes an American
flag aircraft is like an American flag vessel, the fact that a location is subject
to an assertion of United States authority does not necessarily mean that it
is the “territory” of the United States for purposes of the FSIA . . . . If FSIA
immunity prevails in United States embassies, it cannot be displaced with
respect to United States aircraft flying over a foreign land.
Id. at 246 (internal citation omitted).

So, even if the Court were to assume that the Challenger I could be considered subject to

certain U.S. laws as a U.S.-flagged ship, it does not necessarily follow that the vessel is within the

“territory” of the United States for purposes of the FSIA.

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 Therefore, the Court finds that the non-commercial tort exception does not apply, because

a tort committed on a U.S.-flagged vessel in international waters is not committed “in the United

States” for purposes of the FSIA. So Count 1 – to the extent that it is premised on the non-

commercial tort exception – and the remaining counts, will be dismissed for lack of subject matter

jurisdiction.

III. Because Israel has not been designated as a “state sponsor of terrorism,” the
terrorism exception does not apply.
Plaintiffs Araff and Deknopper maintain that the Court has jurisdiction under the terrorism

exception, 28 U.S.C. § 1605A, over their claim in Count 1 that defendants tortured them. See

Compl. ¶¶ 5, 49. The terrorism exception abrogates immunity in cases:

in which money damages are sought against a foreign state for personal
injury or death that was caused by an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of material support or
resources for such an act if such act or provision of material support is
engaged in by an official, employee, or agent of such foreign state while
acting in the scope of his or her office, employment or agency.

28 U.S.C. § 1605A(a)(1).

The FSIA specifies the conditions under which the terrorism exception may be invoked.

A court “shall hear a claim” if three conditions are satisfied: (1) “the foreign state was designated

as a state sponsor of terrorism at the time the act . . . occurred, or was so designated as a result of

the act;” (2) “the claimant or the victim was, at the time the act . . . occurred,” a U.S. national, a

member of the armed forces, an employee of the United States government, or a U.S. government

contractor acting within the scope of the contractor’s employment; and (3) “in a case in which the

act occurred in the foreign state against which the claim has been brought, the claimant has

afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with the

accepted international rules of arbitration.” Id. § 1605A(a)(2).

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 With respect to the first requirement, the statute defines the term “state sponsor of

terrorism” to mean:

[A] country the government of which the Secretary of State has determined,
for purposes of section 6(j) of the Export Administration Act of 1979 (50
U.S.C. App. 2405(j)), section 620A of the Foreign Assistance Act of 1961
(22 U.S.C. § 2371), section 40 of the Arms Export Control Act (22 U.S.C.
§ 2780), or any other provision of law, is a government that has repeatedly
provided support for acts of international terrorism.

28 U.S.C. § 1605A(h)(6). The Secretary of State currently designates three countries – Iran,

Sudan, and Syria – as state sponsors of terrorism. See “State Sponsors of Terrorism,”

http://www.state.gov/j/ct/list/c14151.htm.

Plaintiffs recognize that Israel is not on the list, but they point to the legislative history of

the current version of the exception and argue that the designation is not a necessary precondition

to the abrogation of sovereign immunity. See Pls.’ Opp. at 22–25. The previous version of the

terrorism exception provided:

[T]he court shall decline to hear a claim under this paragraph – (A) if the
foreign state was not designated as a state sponsor of terrorism . . . at the
time the act occurred, unless later so designated as a result of such act.
Antiterrorism & Effective Death Penalty Act of 1996, § 221, Pub. L. No. 104–132, 110 Stat 1214

(1996), codified at 28 U.S.C. § 1605(a)(7). In 2008, Congress repealed section 1605(a)(7) and

enacted the present version of the terrorism exception – renumbered as 28 U.S.C. § 1605A.

National Defense Authorization Act for Fiscal Year 2008, § 1083, Pub. L. No. 110–181, 122 Stat

3 (2008). The amended statute is no longer cast in terms of when the court must decline to hear a

claim – what plaintiffs call a “red light,” Pl.’s Opp. at 23; instead, the statute now details the

circumstances when the court “shall hear a claim.” 28 U.S.C. § 1605A(a)(2) (emphasis added).

According to plaintiffs, “[t]he language adopted by Congress in 2008 abandoned the designation

requirement . . . and left open the possibility that a non-designated state could be a defendant under

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the new § 1605A exception.” Pls.’ Opp. at 24. Plaintiffs add that this lawsuit presents “a case of

first impression, requiring the Court for the first time to apply the explicit text of § 1605A as it is,

not as it was.” Id. at 25.

But the D.C. Circuit has grappled with the new language, and it observed that former

section 1605(a)(7) “is materially identical to current section 1605A.” Weinstein v. Islamic

Republic of Iran, 831 F.3d 470, 482 n.22 (D.C. Cir. 2016). And the D.C. Circuit has joined its

sister circuits around the country in concluding that any assertion of immunity based on 28 U.S.C.

§ 1605A “requires that [] the foreign country was designated a ‘state sponsor of terrorism at the

time [of] the act.” Mohammadi v. Islamic Republic of Iran, 785 F.3d 9, 14 (D.C. Cir. 2015); accord

Bennett v. Islamic Republic of Iran, 825 F.3d 949, 955 (9th Cir. 2016) (terrorism exception “strip[s]

a foreign state of its sovereign immunity when (1) the United States officially designates the

foreign state a state sponsor of terrorism,” and (2) the foreign state is sued for an act of terrorism);

In re Terrorist Attacks on Sept. 11, 2001, 714 F.3d 109, 115 n.7 (2d Cir. 2013) (noting that the

terrorism exception “is only available against a nation that has been designated by the United States

government as a state sponsor of terrorism at the time of, or due to, a terrorist act.”); Lubian v.

Republic of Cuba, 440 F. App’x 866, 868 (11th Cir. 2011) (affirming the dismissal of a complaint

where because the “requirement[]” that “the foreign state must have been designated a ‘state

sponsor of terrorism’ when the predicate act occurred” was not satisfied); see also Owens v.

Republic of Sudan, 174 F. Supp. 3d 242, 273 (D.D.C. 2016) (concluding that “[s]ubsection (a)(2)”

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of the terrorism exception “contains three collateral requirements,” including that “that the foreign

state was designated as a state sponsor of terrorism”). 9

And in any event, plaintiffs misread the statute as a whole. The Court must begin with the

presumption that Israel is immune from suit. 28 U.S.C. § 1604; see also Simon, 812 F.3d at 135

(beginning its analysis with the “baseline grant of immunity,” and then assessing whether any

exceptions to immunity apply). The terrorism exception provides that a court “shall hear a claim”

if “the foreign state was designated as a state sponsor of terrorism at the time the act . . . occurred,

or was so designated as a result of the act.” 28 U.S.C. § 1605A(a)(2). Israel is not, and has never

been, designated as a state sponsor of terrorism. So the presumption of immunity has not been

overcome in this case. Therefore the Court lacks jurisdiction over plaintiff’s claim of torture in

Count 1 to the extent that Count 1 is premised on the terrorism exception.

9 Plaintiffs find support in a recent Supreme Court decision – Bank Markazi v. Peterson, 136
S. Ct. 1310 (2016). Pls.’ Opp. at 22, 24. In that case, the majority opinion summarized the
terrorism exception in a single sentence – “American nationals may file suit against state sponsors
of terrorism in the courts of the United States.” Bank Markazi, 136 S. Ct. at 1317. Plaintiffs note
that the Court’s statement of law “says nothing about any requirement that a sovereign be
designated by the Secretary of State as a sponsor of terrorism before a case against it may proceed.”
Pls.’ Opp. at 24. The Bank Markazi opinion dealt with a separation-of-powers question related to
the complex statutes that apply when victims of state-sponsored terrorism attempt to collect on
judgments in certain cases, see Bank Markazi, 136 S. Ct. at 1317, and nothing about the Court’s
concise statement purports to adopt the broad interpretation advanced by plaintiffs here, which is
contrary to the plain language of the FSIA.

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 CONCLUSION

For the foregoing reasons, the Court concludes that there has been no waiver of sovereign

immunity that would enable the Court to exercise subject matter jurisdiction over this dispute. The

complaint will be dismissed with prejudice. A separate order will issue.

AMY BERMAN JACKSON
United States District Judge

DATE: January 25, 2017

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