Claim of foreign sovereign immunity

Federal District Court Opinions

BELHAS v. YA’ALON, (D.C. 12-14-2006) ALI SAADALLAH BELHAS, et al., Plaintiffs, v. MOSHE YA’ALON, Defendant. Civil Action No. 05-2167 (PLF). United States District Court, D. Columbia. December 14, 2006

OPINION

PAUL FRIEDMAN, District Judge

This matter is before the Court on defendant’s motion to
dismiss the complaint for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Federal Rules of
Civil Procedure.[fn1] Plaintiffs, citizens of Lebanon, have
brought suit against Israeli General Moshe Ya’alon under
the Alien Tort Claims Act, 28 U.S.C. § 1350
(“ATCA”), and the Torture Victim Protection Act of 1991, 28
U.S.C. § 1350 (note) (“TVPA”). Plaintiffs allege
that defendant’s actions constitute war crimes, see
Complaint (Compl.”) §§ 92-96, extrajudicial
killing, see id. §§ 97-101, crimes against
humanity, see id. §§ 102-106, and cruel,
inhuman or degrading treatment or punishment, see id.
§§ 107-111. Defendant argues that this suit:
is barred by the Foreign Sovereign Immunities Act (“FSIA”),
28 U.S.C. §§ 1602 et seq.; presents
nonjusticiable political questions; and is barred by the
act of state doctrine. For the following reasons, the Court
grants the Page 2 defendant’s motion to dismiss.

I. MOTION TO DISMISS STANDARD

Federal courts are courts of limited jurisdiction, with
the ability only to hear cases entrusted to them by a grant
of power contained in either the Constitution or in an act
of Congress. See, e.g., Hunter v. District of Columbia, 384
F. Supp. 2d 257, 259 (D.D.C. 2005); Srour v. Barnes, 670 F.
Supp. 18, 20 (D.D.C. 1987) (citing City of Kenosha v.
Bruno, 412 U.S. 507, 511 (1973)). On a motion to dismiss
for lack of subject matter jurisdiction under Rule 12(b)(1)
of the Federal Rules of Civil Procedure, the plaintiff
bears the burden of establishing that the court has
jurisdiction. See Brady Campaign to Prevent Gun Violence v.
Ashcroft, 339 F. Supp. 2d 68, 72 (D.D.C. 2004).

While generally a court must accept the allegation in a
complaint as true and construe, all inferences in
plaintiffs’ favor on a motion to dismiss, where the motion
is based “on a claim of foreign sovereign immunity, which
provides protection from suit and not merely a defense to
liability . . . the court must engage in sufficient
pretrial factual and legal determinations to satisfy itself
of its authority to hear the case.” Jungquist v. Al Nahyan,
115 F.3d 1020, 1027-28 (D.C. Cir. 1997) (internal
quotations and citations omitted); see also Kilburn v.
Socialist People’s Libyan Arab Republic, 376 F.3d 1123,
1131 (D.C. Cir. 2004) (“Kilburn v. Libya”). More
specifically, “when a foreign state defendant raises a
dispute over the factual basis of the court’s subject
matter jurisdiction under the FSIA, the trial court is
required to go beyond the pleadings and resolve any
disputed issues of fact the resolution of which is
necessary to a ruling on the motion to dismiss.” Price v.
Socialist People’s Libyan Arab Jamahiriya, Page 3 294 F.3d
82, 87 (D.C. Cir. 2002) (“Price v. Libya”); see also
Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d
36, 38 (D.C. Cir. 2000).

II. BACKGROUND

This lawsuit arises from the bombing of Qana, within
southern Lebanon, by the Israeli military on April 18,
1996. See Compl. § 1. The bombing was the result of
the conflict between Israel and Hezbollah. See id.
§§ 25, 30.[fn2] Civilians and United Nations
(“UN”) soldiers at a UN compound were killed in the Qana
bombing. See id. § 1. Plaintiffs are Lebanese
citizens who were injured and/or killed in the Qana
bombing, and their families. See id. §§ 7-13.
Defendant Moshe Ya’alon is a retired Israeli general who
was the head of Israeli Army Intelligence at the time of the
Qana bombing. See id. §§ 2, 14, 20.

Defendant has submitted a letter regarding this lawsuit
from the Ambassador of the State of Israel to the United
States Department of State Under-Secretary for Political
Affairs. See Exhibit A to Defendant’s Motion to Dismiss,
February 6, 2006 Letter from Daniel Ayalon to Nicholas
Burns (“Ambassador’s Letter”). The letter states that this
lawsuit “challenge[s] sovereign actions of the State of
Israel, approved by the government of Israel in defense of
its citizens against terrorist attacks[,]” and opines that
“[t]o allow a suit against these former officials is to
allow a suit against Israel itself.” Id. at 2. Plaintiffs
allege that “[a]t all times relevant hereto, Defendant was
acting under color of Israeli law.” Compl. § 26. It
therefore is undisputed that General Ya’alon was acting in
his official capacity with respect to the events underlying
this lawsuit. Page 4

III. DISCUSSION

A. Foreign Sovereign Immunities Act

Federal district courts have exclusive jurisdiction over
civil actions against a foreign state, regardless of the
amount in controversy, provided that the foreign state is
not entitled to immunity under the Foreign Sovereign
Immunities Act. See 28 U.S.C. §§ 1330, 1604;
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S.
428, 434-35 (1989). The FSIA is “the sole basis for
obtaining jurisdiction over a foreign state in our courts.”
Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S.
at 434. Under the FSIA, a foreign state is presumed to be
immune from suit and is in fact immune unless one or more
of the exceptions to immunity specifically enumerated
within the FSIA apply. See 28 U.S.C. §§
1604-1607; Saudi Arabia v. Nelson, 507 U.S. 349, 355
(1993); see also Price v. Libya, 294 F.3d at 87 (The FSIA
“confers immunity on foreign states in all cases that do
not fall into one of its specifically enumerated
exceptions.”). “[I]f none of the exceptions to sovereign
immunity applies, district courts lack the jurisdiction in
suits against a foreign state, or an agency or
instrumentality thereof, regardless of the nature of the
substantive claim.” Foremost-McKesson, Inc. v. Iran, 905
F.2d 438, 442 (D.C. Cir. 1990). Defendant “bears the burden
of proving that the plaintiff’s allegations do not bring
its case within a statutory exception to immunity.” Phoenix
Consulting, Inc. v. Republic of Angola, 216 F.3d at 40. If
the defendant challenges only the legal sufficiency of the
plaintiff’s jurisdictional allegations, as in this case,
the Court “should take the plaintiff’s factual allegations
as true and determine whether they bring the case within
any of the exceptions to immunity invoked by the
plaintiff.” Id.; see Kilburn v. Libya, 376 F.3d at 1127.
Page 5

The FSIA defines “foreign state” to include a state’s
political subdivisions, agencies, and instrumentalities.
See 28 U.S.C. § 1603(a); Republic of Austria v.
Altmann, 541 U.S. 677, 691 (2004).[fn3] “Because Section
1603(a) defines `foreign state’ as including `agencies and
instrumentalities,’ the distinction between the two is only
relevant in the FSIA where explicitly drawn.” Jacobsen v.
Oliver, 451 F. Supp. 2d 181, 195 (D.D.C. 2006).
Furthermore, the “armed forces are as a rule so closely
bound up with the structure of the state that they must in
all cases be considered as the `foreign state’ itself,
rather than a separate `agency or instrumentality’ of a
state.” Transaero, Inc. v. La Fuerza Aerea Boliviana, 30
F.3d 148, 153 (D.C. Cir. 1994) (emphasis added).
“Individuals acting in their official capacities are
considered `agenc[ies] or instrumentalit[ies] of a foreign
state;’ these same individuals, however, are not entitled
to immunity under the FSIA for acts that are not committed
in an official capacity.” Page 6 Jungquist v. Al Nahyan,
115 F.3d at 1027 (internal citations omitted); see also
El-Fadl v. Central Bank of Jordan, 75 F.3d 668, 671 (D.C.
Cir. 1996).

If General Ya’alon’s actions were taken in an official
capacity, he therefore was acting as an agency or
instrumentality of the foreign state, and is immune from
suit under the FSIA. See Jungquist v. Al Nahyan, 115 F.3d
at 1027; El-Fadl v. Central Bank of Jordan, 75 F.3d at 671;
see also Doe v. Israel, 400 F. Supp. 2d 86, 104 (D.D.C.
2005) (“A suit against an individual officer of a nation
who has acted on behalf of that nation is the functional
equivalent of a suit against the state itself.”). It is
clear from the complaint (including the case caption) that
defendant is a retired Israeli military official who is
being sued solely for actions taken in his official
capacity. See Compl. §§ 2, 20, 26. For
example, plaintiffs allege that General Ya’alon “had
command responsibility for the attack[,]” Compl. §
2, and “participated in the decision to shell the UN
compound at Qana.” Id. There is no allegation that
defendant’s activities were “personal or private” in
nature. On the contrary, plaintiffs themselves allege that
defendant “was acting under color of Israeli law.” Compl.
§ 26. Defendant therefore is entitled to the FSIA
presumption of immunity. See Jungquist v. Al Nahyan, 115
F.3d at 1027 (“Individuals acting in their official
capacities are considered `agencies or instrumentalities’
of a foreign state[.]”).

Plaintiffs argue that the Torture Victim Protection Act
“provides liability for extrajudicial killing even if
Defendant’s conduct was authorized.” Opp. at 2-3.
Plaintiffs also argue that the FSIA “does not apply to
those acting outside the scope of their authority under the
applicable domestic or international law, and does not
preclude claims against officials for war crimes, crimes
against humanity, extrajudicial killing, and cruel,
inhuman, or degrading treatment or punishment.” Id. The
Court will address each of these arguments in turn. Page 7

B. Plaintiffs’ Substantive Arguments

1. Torture Victim Protection Act of 1991

Section 2(a) of the Torture Victim Protection Act of 1991
provides:

An individual who, under actual or apparent authority, or
color of law, of any foreign nation —

(1) subjects an individual to torture shall, in a civil
action, be liable for damages to that individual; or

(2) subjects an individual to extrajudicial killing
shall, in a civil action, be liable for damages to the
individual’s legal representative, or to any person who
may be a claimant in an action for wrongful death.

28 U.S.C. § 1350 (note). Plaintiffs argue that under
the TVPA, individual officials of a foreign state should be
treated differently from the state itself for purposes of
FSIA immunity. See Opp. at 8-9. They maintain that the TVPA
abrogates the FSIA as to individuals, since it provides for
liability of individuals acting under actual or apparent
authority or color of law. See id. at 6-9. They do not cite
a single case, however, that holds that the TVPA abrogates
the FSIA.

The Court disagrees with plaintiffs. Because a foreign
official is an “agency or instrumentality” of the foreign
state, see El-Fadl v. Central Bank of Jordan, 75 F.3d at
671 and Jungquist v. Al Nahyan, 115 F.3d at 1027, and
agencies and instrumentalities of foreign states are
included within the definition of “foreign state” in the
FSIA, see 28 U.S.C. § 1603(a), the Court concludes
that there is no basis in this case to treat individual
officials differently from foreign states themselves under
the FSIA. See Jacobsen v. Oliver, 451 F. Supp. 2d at 195
(“Because Section 1603(a) defines `foreign state’ as
including `agencies and instrumentalities,’ Page 8 the
distinction between the two is only relevant in the FSIA
where explicitly drawn[,]” such as in Section 1606 and in
Section 1608.) (emphasis added).

This conclusion does not lead to the result that no
official acting on behalf of a foreign state can ever be
sued under the TVPA. There are several statutory exceptions
to the FSIA, including, among others, waiver, 28 U.S.C.
§ 1605(a)(1), certain actions by state sponsors of
terrorism, 28 U.S.C. § 1605(a)(7), disputes arising
from commercial activities of a foreign state, 28 U.S.C.
§ 1605(a)(2), and disputes arising from certain
tortious acts committed within the United States, 28 U.S.C.
§ 1605(a)(5). In a case where an FSIA exception
applies, a foreign state official acting in his official
capacity could be sued under the TVPA. See Price v. Libya,
294 F.3d at 92 (analyzing TVPA claims against Libya under
the state sponsored terrorism exception to the FSIA); Doe
v. Israel, 400 F. Supp. 2d at 104-05 (analyzing ATCA and
TVPA claims against individuals acting in an official
capacity under specific statutory exceptions to the FSIA).
Conversely, where no such exception applies, the courts of
the United States lack jurisdiction to consider TVPA
claims. See Austria v. Altmann, 541 U.S. at 691; Doe v.
Israel, 400 F. Supp. 2d at 104-05.

2. Actions Outside the Scope of Lawful Authority

Plaintiffs also argue that sovereign immunity cannot bar
this suit against defendant because the FSIA “may immunize
officials only when they act within the scope of their
lawful authority.” Opp. at 10. They rely on Jungquist v. Al
Nayhan for this proposition. See Opp. at 10-11. Jungquist
makes very clear, however, that the reason a particular
individual defendant in that case was not immune under the
FSIA was not because his actions exceeded the Page 9
scope of his lawful authority, but rather because “Sheihk
Sultan’s promise to the Jungquists was . . . not in
furtherance of the interests of the sovereign but [was] a
personal and private action[,]” and therefore that one
defendant was not entitled to FSIA immunity. Jungquist v.
Al Nayhan, 115 F.3d at 1028. The defendant’s actions in
this case, by contrast, were in no way “personal or
private” actions; the defendant therefore is entitled to
FSIA immunity for the actions taken “in furtherance of the
interests of the sovereign” and in his official capacity.
As noted above, there is no question here that the defendant
was acting solely in his official capacity. Not only does
the complaint allege that he was acting under color of law,
see Compl. § 26, but defendant has produced evidence
stating that the Israeli government views the actions
described in the complaint as “sovereign actions” and
“official state acts.” Ambassador’s Letter at 2.

Plaintiffs also argue that defendant’s actions on behalf
of Israel cannot be within the scope of his authority
because, they allege, the actions violated norms of
international law and were war crimes, crimes against
humanity and constituted prohibited extrajudicial killing.
See Opp. at 15-21. They further maintain that defendant
acted outside the scope of his authority under Israeli law.
See id. at 21. Plaintiffs do not, however, try to fit their
arguments within the framework of the statutory exceptions
to immunity under the FSIA. See 28 U.S.C. §
1605(a).[fn4] As noted above, the FSIA is “the sole basis
for obtaining jurisdiction over a foreign state in our
courts.” Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. at 434. There is no Page 10 authority for the
proposition that the TVPA, the ACTA or any other statute
trumps or preempts the FSIA. Simply put, the FSIA “confers
immunity on foreign states in all cases that do not fall
into one of its specifically enumerated exceptions.” Price
v. Libya, 294 F.3d at 87 (emphasis added); see also In re
Terrorist Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765,
782 (S.D.N.Y. 2005); Burnett v. Al Baraka Investment and
Devel. Corp., 292 F. Supp. 2d 9, 14 (D.D.C. 2003).

Plaintiffs again invite the Court to distinguish between
individual defendants and foreign states. See Opp. at 25. As
the Court explained above, however, the D.C. Circuit has
squarely held that foreign officials acting in their
official capacities on behalf of foreign states are
agencies and instrumentalities of foreign states, and thus
are within the definition of a foreign state under the
FSIA. See Jungquist v. Al Nahyan, 115 F.3d at 1027; El-Fadl
v. Central Bank of Jordan, 75 F.3d at 671. As to foreign
states, the Supreme Court explained that “Congress had
violations of international law by foreign states in mind
when it enacted the FSIA.” Argentine Republic v. Amerada
Hess Shipping Corp., 488 U.S. at 435. “From Congress’
decision to deny immunity to foreign states in the classes
of cases just mentioned, we draw the plain implication that
immunity is granted in those cases involving alleged
violations of international law that do not come within one
of the FSIA’s exceptions.” Id. at 436. The Court declines
to craft an exception to the FSIA that is not found within
the statute itself.

C. Jurisdictional Discovery

The scope of discovery “lies within the district court’s
discretion.” Mwani v. Bin Laden, 417 F.3d 1, 17 (D.C. Cir.
2005). Plaintiffs assert that jurisdictional discovery is
required in this case to permit resolution of factual
disputes relating to jurisdiction. See Opp. at 26. They
Page 11 argue that defendant’s “entire defense of sovereign
immunity lies in his claim that the shelling was
accidental,” a “question of fact [that] must be subject to
discovery.” Id. at 27. As explained above, however, a
finding of sovereign immunity here does not rest upon
factual findings such as the accidental nature of the
shelling, but rather on the lack of a statutory exception
in the Foreign Sovereign Immunities Act that grants the
Court subject matter jurisdiction over this lawsuit. That
is a legal conclusion rather than a factual finding; for
that reason alone, it is apparent that no jurisdictional
discovery is required. See In re Papandreou, 139 F.3d 247,
253-54 (D.C. Cir. 1998); Mwani v. Bin Laden, 417 F.3d at
17; Burnett v. Al Baraka Investment and Devel. Corp., 292
F. Supp. 2d at 15-16.

As the D.C. Circuit has explained, “[i]n light of the
evidence that [defendant] proffered to the district court
and the absence of any showing by [plaintiff] that
[defendant] was not acting in his official capacity,
discovery `would frustrate the significance and benefit of
the entitlement to immunity from suit.'” El-Fadl v. Central
Bank of Jordan, 75 F.3d at 671 (citing Foremost-McKesson v.
Islamic Republic of Iran, 905 F.2d at 449 (further internal
quotations and citations omitted)). That statement applies
equally well to this case. The Court therefore declines to
allow jurisdictional discovery.

III. CONCLUSION

Having concluded that the Court lacks subject matter
jurisdiction over this action pursuant to the Foreign
Sovereign Immunities Act, the Court need not decide whether
this case involves non-justiciable political questions. See
Center for Law and Education v. Dept. of Education, 396
F.3d 1152, 1156 (D.C. Cir. 2005) (The Court has “no trouble
dismissing a claim Page 12 based on one jurisdictional bar
rather than another.”) (internal quotations and citations
omitted). The Court also need not reach the question of
whether adjudication of the conduct at issue would violate
the act of state doctrine. For the foregoing reasons,
defendant’s motion to dismiss is granted. An Order
consistent with this Opinion will issue this same day.

[fn1] The papers that have been submitted in connection with
this motion include: a Memorandum of Points and Authorities
in Support of Moshe Ya’alon’s Motion to Dismiss the
Complaint (“Mem.”); a Memorandum in Support of Plaintiffs’
Opposition to Defendant’s Motion to Dismiss the Complaint
(“Opp.”); and a Reply Memorandum of Points and Authorities
in Further Support of Moshe Ya’alon’s Motion to Dismiss the
Complaint (“Reply”).

[fn2] Hezbollah has been designated by the United States
government as a terrorist organization. See Mem. at 1.

[fn3] 28 U.S.C. § 1603 provides, in relevant part:

(a) A “foreign state”, except as used in section 1608 of
this title, includes a political subdivision of a foreign
state or an agency or instrumentality of a foreign state
as defined in subsection (b).

(b) An “agency or instrumentality of a foreign state”
means any entity —

(1) which is a separate legal person, corporate or
otherwise, and

(2) which is an organ of a foreign state or political
subdivision thereof, or a majority of whose shares or
other ownership interest is owned by a foreign state or
political subdivision thereof, and

(3) which is neither a citizen of a State of the United
States as defined in section 1332(c) and (e) of this
title, nor created under the laws of any third country.

[fn4] The plaintiffs do not argue, for example, that
violations of the norms of international law constitute an
implicit waiver of immunity under 28 U.S.C. §
1605(a)(1). Nor would such an argument be persuasive. See
Princz v. Federal Republic of Germany, 26 F.3d 1166, 1174
(D.C. Cir. 1994) (“We have no warrant, therefore, for
holding that the violation of jus cogens norms by the Third
Reich constitutes an implied waiver of sovereign immunity
under the FSIA.”); see also Doe v. Israel, 400 F. Supp. 2d
at 105 (“Jus cogens violations, without more, do not
constitute an implied waiver of FSIA immunity.”). Page 1