Matar v. Dichter

Decision Date02 May 2007
Docket NumberNo. 05 Civ.10270(WHP).,05 Civ.10270(WHP).
PartiesRa`Ed Mohamad Ibrahim MATAR, et al., Plaintiffs, v. Avraham DICHTER, former Director of Israel's General Security Service, Defendant.
CourtU.S. District Court — Southern District of New York

Jennifer M. Green, New York City, for Plaintiffs.

Robert N. Weiner, Arnold & Porter, LLP, New York City, for Defendant.

MEMORANDUM AND ORDER

PAULEY, District Judge.

Plaintiffs bring this putative class action pursuant to the Alien Tort Statute ("ATS") and the Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 1350 and Note, against Avraham Dicther ("Defendant" or "Dichter"), former Director of the Israeli General Security Service ("GSS"). The Complaint alleges that Defendant committed the following acts: (1) war crimes; (2) crimes against humanity; (3) cruel, inhuman or degrading treatment or punishment; (4) extrajudicial killings; (5) wrongful death; (6) negligence; (7) public nuisance; (8) battery; (9) intentional infliction of emotional distress; and (10) negligent infliction of emotional distress. Defendant moves to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1). For the reasons set forth below, Defendant's motion is granted.

BACKGROUND

The Complaint alleges that since the fall of 2000, Israel has systematically committed "targeted killings" of suspected terrorists. (Complaint, dated Dec. 5, 2005 ("Compl.") ¶ 17.) The targeted killings are allegedly performed with knowledge that civilians may be killed or injured. (Compl.¶ 17.) Since September 29, 2000, 327 suspected terrorists and 174 bystanders have died in targeted killing attacks. (Compl.¶ 18.)

On July 22, 2002, the Israeli Defense Forces ("IDF") bombed an apartment building in al-Daraj, a residential neighborhood in Gaza City in the Occupied Palestinian Territory. (Compl.¶¶ 1, 22.) The attack was intended to and did kill Saleh Mustafa Shehadeh, an alleged Hamas leader who was on the upper floor of the building. (Compl.¶ 23.) The bomb seriously damaged the building and nearby structures, killing fourteen civilians and wounding 150. (Compl.¶¶ 1, 24-25, 32.) Plaintiffs are individuals who were injured, and/or represent those who were killed or injured, in the attack. (Compl.¶ 2.) The United States Department of State (the "State Department") and the White House have criticized the al-Daraj bombing. (Compl.¶ 3.)

Defendant is a former director of GSS, one of several Israeli security organizations that collectively form the Israeli Security Forces. (Compl.¶ 36.) The main preparations for Israel's targeted killings are allegedly conducted by GSS, which coordinates directly with IDF during each operation. (Compl.¶¶ 37-38.) Final approval for an attack is issued by GSS. (Compl.¶ 38.)

Dichter allegedly authorized, planned and directed the al-Daraj bombing. (Compl.¶¶ 2, 40, 43.) More generally, the Complaint alleges that Ditcher "developed, implemented, and escalated" Israel's targeted killing policy, and that the al-Daraj attack was "part of a pattern and practice of systematic human rights violations designed, ordered, implemented and directed with the participation of Defendant and carried out by military personnel acting at his direction." (Compl.¶¶ 19, 63.)

Plaintiffs filed this action on December 7, 2005. On February 6, 2006, Daniel Ayalon, then-Israeli Ambassador to the United States, conveyed to the State Department Israel's "concerns regarding the fundamental inappropriateness and political nature" of the action. (Declaration of Jean E. Kalicki, dated Feb. 22, 2006, Ex. A: Letter from Daniel Ayalon to Nicholas Burns, dated Feb. 6, 2006 ("Ayalon Letter") at 1.) Ayalon stated:

The[] lawsuit[] would embroil the U.S. courts in evaluating Israeli policies and operations in the context of a continuing armed conflict against terrorist operatives. [It] touch[es] directly upon issues related to the Middle East peace process and ongoing and extensive diplomatic efforts ... While ostensibly brought against Mr. Dichter the[] case[] challenge[s] sovereign actions of the State of Israel, approved by the government of Israel in defense of its citizens against terrorist attacks ... [A]nything Mr. Dichter ... 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.

(Ayalon Letter at 2.)

On February 22, 2006, Defendant moved to dismiss the Complaint on the grounds that: (1) Defendant is immunized from suit under the Foreign Sovereign Immunities Act ("FSIA"); (2) action presents a nonjusticiable political question; and (3) the action implicates the act of state doctrine. On July 20, 2006, this Court issued an Order inviting the State Department to "state its views, if any" on Defendant's motion. On November 17, 2006, the State Department submitted a memorandum urging this Court to dismiss the action on grounds of sovereign immunity. (Statement of Interest of the United States of America, dated Nov. 17, 2006 (the "Statement of Interest") at 4-35.) The Statement of Interest warns that "any refusal by U.S. courts to grant immunity to foreign officials for their official acts could seriously harm U.S. interests," and asserts that: "[F]oreign officials such as Dichter do enjoy immunity from suit for their official acts. This immunity is not codified in the [FSIA, as Dichter has argued,] but instead is rooted in longstanding common law that the FSIA did not displace ..." (Statement of Interest at 2.) The Government also contends that there is no private cause of action for the disproportionate use of military force in armed conflict. (Statement of Interest at 35-51.) According to the Government, policing armed conflicts around the world "would exceed judicial competence and intrude on the Executive's control over foreign affairs." (Statement of Interest at 3.) Finally, the Statement of Interest contends that the Government's concerns about judicial competence and separation of powers "sound as well under the political question doctrine." (Statement of Interest at 51 n. 36.) Thus, even "if plaintiffs had a valid cause of action by which to bring their claims, there would be a serious issue whether this particular case should be dismissed on political question grounds ..." (Statement of Interest at 51 n. 36.)

DISCUSSION
I. Motion to Dismiss Standard

A motion to dismiss for subject matter jurisdiction under Rule 12(b)(1) is reviewed under the same standards as a motion to dismiss for failure to state a claim under Rule 12(b)(6). Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003). On a motion to dismiss, a court typically must accept the material facts alleged in the complaint as true and construe all reasonable inferences in a plaintiff's favor.1 Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998). Although on a motion to dismiss a court is generally limited to examining the sufficiency of the pleadings, where, as here, a challenge is directed at the court's subject matter jurisdiction, the court may examine materials outside the complaint to resolve jurisdictional issues. See Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir.1998); In re South African Apartheid Litig., 346 F.Supp.2d 538, 546 (S.D.N.Y.2004).

II. Sovereign Immunity
A. FSIA

The FSIA is the exclusive source of subject matter jurisdiction in suits brought against a foreign state. Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993); Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 611, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992); Robinson v. Gov't of Malaysia, 269 F.3d 133, 138 (2d Cir.2001); Reiss v. Societe Centrale Du Groupe Des Assurances Nationales, 235 F.3d 738, 746 (2d Cir.2000). It provides that "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." 28 U.S.C. § 1604. "Foreign state" is defined by the FSIA to include "an agency or instrumentality of a foreign state." 28 U.S.C. § 1603(a); U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 150 n. 10 (2d Cir.2001). To qualify as an agency or instrumentality, an entity must be: (1) "a separate legal person, corporate or otherwise"; (2) "an organ of a foreign state"; and (3) "neither a citizen of a State of the United States ... nor created under the laws of any third country." 28 U.S.C. § 1603(b).

A foreign state, or an agency or instrumentality thereof, will not be immune from suit in the United States courts if it falls within any of the statutory exceptions enumerated in the FSIA. See 28 U.S.C. § 1604. "[I]f none of the exceptions to sovereign immunity applies, district courts lack jurisdiction in suits against a foreign state, or an agency or instrumentality thereof." Foremost McKesson, Inc. v. Iran, 905 F.2d 438, 442 (D.C.Cir.1990); accord Abrams v. Societe Nationale des Chemins de Fer Francais, 332 F.3d 173, 179 (2d Cir.2003). Thus, the FSIA "must be applied by the district courts' in every action against a foreign sovereign, since subject-matter jurisdiction in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity." Verlinden B.V. v. Cent. Bank of Nig., 461 U.S. 480, 493, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983).

This Court must first consider whether foreign officials such as Dichter are eligible for immunity under the FSIA as "agencies or instrumentalities" of a foreign state. Plaintiffs contend that they are not. However, "[t]he Court is mindful that foreign sovereigns are legal fictions to the extent that they can only act through F.Supp.2d 291, 294-95 (S.D.N.Y.2006). Nevertheless, for the reasons discussed below, the Court would dismiss this action on political question grounds regardless of which rule applies their individual officers." Doe v. Israel, 400 F.Supp.2d 86, 104 (D.D.C.2005); see also Velasco...

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