Belhas v. Ya`Alon

• Decision Date: 14 December 2006
• Docket Number: Civil Action No. 05-2167 (PLF).
• Citation: 466 F.Supp.2d 127
• Parties: Ali Saadallah BELHAS, et al., Plaintiffs, v. Moshe YA`ALON, Defendant.
• Court: U.S. District Court — District of Columbia

466 F.Supp.2d 127

Ali Saadallah BELHAS, et al., Plaintiffs, v. Moshe YA`ALON, Defendant.

Civil Action No. 05-2167 (PLF).

United States District Court, District of Columbia.

December 14, 2006.

James R. Klimaski, Klimaski & Associates, PC, Washington, DC, Judith Brown Chomsky, Michael Poulshock, Law Offices of Judith Chomsky, Elkins Park, PA, for Plaintiffs.

Robert Neil Weiner, Jean Engelmayer Kalicki, Arnold & Porter, LLP, Washington, DC, for Defendant.

OPINION

PAUL L. 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.¹ 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 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, 93 S.Ct. 2222, 37 L.Ed.2d 109 (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 Jamahiriya, 376 F.3d 1123, 1131 (D.C.Cir. 2004) ("Kilburn v. Libyan"). 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, 294 F.3d 82, 87 (D.C.Cir.2002) ("Price v. Libyan";) 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, 30.² 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.

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, 109 S.Ct. 683, 102 L.Ed.2d 818 (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, 109 S.Ct. 683. 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, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993); see also Price v. Libyan, 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 plaintiffs 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 plaintiffs jurisdictional allegations, as in this case, the Court "should take the plaintiffs 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. Libyan, 376 F.3d at 1127.

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, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004).³ "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 instrumental-Kies] 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." 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 extra-judicial 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.

B. Plaintiffs' Substantive Arguments

1. Torture Victim Protection Act of 1991

Section 2(a) of the Torture Victim Protection Act of...