Belhas v. Ya'Alon, No. 07-7009.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtSentelle
Citation515 F.3d 1279
PartiesAli Saadallah BELHAS et al., Appellants v. Moshe YA'ALON, former Head of Army Intelligence Israel, Appellee.
Docket NumberNo. 07-7009.
Decision Date15 February 2008
515 F.3d 1279
Ali Saadallah BELHAS et al., Appellants
v.
Moshe YA'ALON, former Head of Army Intelligence Israel, Appellee.
No. 07-7009.
United States Court of Appeals, District of Columbia Circuit.
Argued December 10, 2007.
Decided February 15, 2008.

[515 F.3d 1281]

Appeal from the United States District Court for the District of Columbia (No. 05cv02167).

Judith Brown Chomsky argued the cause for appellants. With her on the briefs were Katherine Gallagher, Maria LaHood, Jennifer Green, and James Klimaski.

Moira I. Feeney was on the brief for amicus curiae Center for Justice & Accountability in support of appellant.

Robert N. Weiner argued the cause and filed the brief for appellee Moshe Ya'alon.

Before: SENTELLE, Chief Judge; HENDERSON, Circuit Judge; and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SENTELLE.

Concurring opinion filed by Senior Circuit Judge WILLIAMS.

SENTELLE, Chief Judge.


Appellants brought this action seeking damages for injuries and deaths resulting from a battle between Israel and the terrorist organization Hezbollah along the Lebanese border. The defendant, a retired general of the Israeli Defense Forces ("IDF"), had become available for service of process by visiting the United States as a fellow at a Washington, D.C., think tank. The district court dismissed the action for lack of jurisdiction, citing the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602-11 ("FSIA"). Belhas v. Ya'Alon, 466 F.Supp.2d 127 (D.D.C.2006). Because the district court is entirely correct, we affirm.

I. BACKGROUND

We note first in setting forth the factual background of this litigation that the district court entered the judgment of dismissal on defendant's motion under Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss the action for lack of subject matter jurisdiction. As the district court noted, "[w]hile generally a court must accept the allegation[s] 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.'" Belhas, 466 F.Supp.2d at 128 (quoting Jungquist v. Al Nahyan, 115 F.3d 1020, 1027-28 (D.C.Cir. 1997)). Therefore, our background statement, while drawn largely from the allegations of the complaint, will occasionally make reference to other filings with the district court during the course of litigation.

Defendant, General Moshe Ya'alon, served as Head of Army Intelligence from 1995 to 1998. During this time, Army Intelligence conducted cross-border intelligence-gathering operations with its small semi-autonomous air force. Army Intelligence passed along communications intercepts, target studies, daily intelligence reports, and risk of war estimates to the Prime Minister and his cabinet.

Meanwhile, in April 1996, the IDF's Northern Command, a unit responsible for patrolling Israel's northern border with Lebanon, launched "Operation Grapes of Wrath" in southern Lebanon. The operation's purpose was to exert pressure on the Lebanese government to disarm Hezbollah

515 F.3d 1282

guerrilla forces operating in southern Lebanon. At the beginning of the military operation, the IDF broadcast warnings via radio to Lebanese civilians living in the target area, stating that those who remained in towns in the south of Lebanon would be considered connected with Hezbollah. Several hundred civilians, including Plaintiffs, chose to remain in southern Lebanon and relocate to a United Nations ("UN") compound in a town called Qana. The complaint alleges that Ya'alon "also had command responsibility for the attack," although it offers no factual allegation as to how he, as head of intelligence, fit in the chain of command of the operational units conducting the shelling.

The complaint alleges, on information and belief, that Israeli helicopters were present in Qana and able to observe civilians in the UN compound. Appellants further allege that communications from these helicopters put General Ya'alon on actual notice of the presence of civilians in the compound. The IDF subsequently shelled Qana, and Plaintiffs claim that General Ya'alon, acting "under the actual or apparent authority and/or color of law of the State of Israel, . . . failed to take appropriate and necessary measures to prevent troops" from shelling civilians there. Compl. ¶¶ 50, 98. More than a hundred died and many others were injured.

Appellants are relatives of civilians who died or were injured in the UN compound during the shelling of Qana. On November 4, 2005, they brought suit under the Alien Tort Claims Act ("ATCA"), 28 U.S.C. § 1350, and the. Torture Victim Protection Act of 1991 ("TVPA"), 28 U.S.C. § 1350 (note), alleging that the above acts constitute war crimes, extrajudicial killing, crimes against humanity, and cruel, inhuman or degrading treatment or punishment perpetrated by General Ya'alon. On February 21, 2006, General Ya'alon moved to dismiss for lack of subject matter jurisdiction and attached a letter from the Ambassador of the State of Israel to the United States. The letter stated that "anything [General Ya'alon] did in connection with the events at issue in the suit[ was in the course of [his] official duties, and in furtherance of official policies of the State of Israel. To allow a suit against [General Ya'alon] is to allow a suit against Israel itself." Letter from Daniel Ayalon, Ambassador to the United States, State of Israel, to Nicholas Burns, Under Secretary for Political Affairs, State Department (Feb. 6, 2006).

The district court ordered the case dismissed, holding that the complaint only alleged acts done by General Ya'alon in his official capacity as head of intelligence for the defense forces of the State of Israel. Because the FSIA confers immunity upon any individual acting in his official capacity for a foreign state, and no exception to the FSIA applied to this case, the court held that the FSIA bars suit. See Belhas, 466 F.Supp.2d at 130 (citing 28 U.S.C. §§ 1603-04; El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 671 (D.C.Cir.1996)). The court rejected Plaintiffs' arguments that the FSIA does not protect officials alleged to have acted outside their scope of lawful authority under international or domestic law and that the TVPA abrogates the FSIA to the extent the statute applies to individuals. Id. at 131-32. The district court also denied Plaintiffs' request for jurisdictional discovery. Id. at 133. Plaintiffs appealed both conclusions.

II. ANALYSIS

On appeal, Plaintiffs contend that the district court erred by granting Defendant's motion to dismiss. Like all federal courts, the district court is a court of limited jurisdiction. See, e.g., City of Kenosha v. Bruno, 412 U.S. 507, 511, 93 S.Ct. 2222,

515 F.3d 1283

37 L.Ed.2d 109 (1973). As such, it possesses jurisdiction only over such matters as are committed to it by statute. The Supreme Court has consistently held that the FSIA's enumerated exceptions provide the only path to jurisdiction over foreign states in U.S. courts. See Permanent Mission of India to the United Nations v. City of New York, 548 U.S. ___, 127 S.Ct. 2352, 2355, 168 L.Ed.2d 85 (2007) (citing 28 U.S.C. § 1604; Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989)); see also Princz v. F.R.G., 26 F.3d 1166, 1169 (D.C.Cir.1994). The "general exceptions to the jurisdictional immunity of a foreign state" are set forth in 28 U.S.C. § 1605.

A. Application of the Foreign Sovereign Immunities Act

Instead of suing the foreign state of Israel, something prohibited by the FSIA in the absence of allegation of any of the statutory exceptions, Plaintiffs sued a retired Israeli general with at most a tangential relationship to the events at issue who made a convenient visit to the District of Columbia. But the FSIA is not written so narrowly as to exclude all but foreign states in name. It applies to foreign states, their political subdivisions, and their agencies and instrumentalities. 28 U.S.C. § § 1603-04. Furthermore, "[a]n individual can qualify as an `agency or instrumentality of a foreign state.'" El-Fadl, 75 F.3d at 671 (citing 28 U.S.C. § 1603(b); Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095, 1101-03 (9th Cir. 1990)). An individual qualifies for this immunity when he acts in his official capacity for the state. See Jungguist, 115 F.3d at 1027.

The district court correctly concluded that Plaintiffs have only alleged acts done in General Ya'alon's official capacity and have in no instance alleged acts that were either personal or private in nature. See id. at 1028 (finding that the district court reasonably concluded that defendant's actions were "personal and private rather than official in nature" based in part on a statement by the defendant's superior that if he had done the alleged acts he would take him "for a walk in the desert" — meaning kill him). According to the complaint, at the time of the shelling in Qana, General Ya'alon was Head of Army Intelligence for the IDF and was acting "under the actual or apparent authority and/or color of law of the State of Israel." Compl. ¶ 98. Appellants further alleged that he "had command responsibility for the attack." Id. ¶ 2. Nothing in the complaint indicates that General Ya'alon took part in any events related to the shelling of Qana that were outside his official authority and role as the head of intelligence for the IDF.

In cases involving foreign sovereign immunity, it is also appropriate to look to statements of the foreign state that either authorize or ratify the acts at issue to determine whether the defendant committed the alleged acts in an official capacity. See, e.g., Jungguist,...

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