Schermerhorn v. State

• Decision Date: 01 December 2017
• Docket Number: No. 17-7023,17-7023
• Citation: 876 F.3d 351
• Parties: David SCHERMERHORN, et al., Appellants v. STATE OF ISRAEL, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

876 F.3d 351

David SCHERMERHORN, et al., Appellants

v.STATE OF ISRAEL, et al., Appellees

No. 17-7023

United States Court of Appeals, District of Columbia Circuit.

Argued October 16, 2017

Decided December 1, 2017

Steven M. Schneebaum argued the cause for appellants. With him on the briefs was Ralph G. Steinhardt.

John B. Bellinger, III, Washington, DC, argued the cause for appellees. With him on the brief were Robert N. Weiner, Washington, DC, Sally L. Pei, and R. Reeves Anderson.

Before: Rogers and Tatel, Circuit Judges, and Edwards, Senior Circuit Judge.

Tatel, Circuit Judge:

On May 29, 2010, Plaintiffs—three United States citizens and one foreign national—set sail aboard the U.S.-flagged ship Challenger I as part of the "Gaza Freedom Flotilla." Compl. ¶ 31. The Flotilla's stated aim was to "draw international public attention to the situation in the Gaza Strip and the effect of the [Israeli] blockade." Id. ¶ 24. According to Plaintiffs, when the Challenger I was approximately seventy nautical miles from the Gaza Strip and still in international waters, Israeli Defense Forces attacked the vessel and detained them in violation of international law. Id. ¶¶ 7–11, 28, 40. Seeking to recover for these alleged torts, Plaintiffs filed suit against Israel and its ministries in the United States District Court for the District of Columbia. Israel moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that it enjoyed immunity from suit under the Foreign Sovereign Immunities Act of 1976 (FSIA). Plaintiffs responded that the FSIA's "non-commercial torts" and "terrorism" exceptions allowed the district court to exercise jurisdiction. Finding neither exception applicable, the district court dismissed the case. Schermerhorn v. Israel , 235 F.Supp.3d 249 (D.D.C. 2017). For the reasons set forth in this opinion, we affirm.

I.

The FSIA provides "the sole basis for obtaining jurisdiction over a foreign state in our courts." Argentine Republic v. Amerada Hess Shipping Corp ., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). Under the FSIA, foreign sovereigns enjoy absolute immunity from suit unless the case falls within one of several specified exceptions, two of which—the "non-commercial torts" exception, 28 U.S.C. § 1605(a)(5), and the "terrorism" exception, id. § 1605A—are at issue in this case. We consider each in turn, "[r]eview[ing] the District Court's sovereign immunity determination de novo." Odhiambo v. Republic of Kenya , 764 F.3d 31, 35 (D.C. Cir. 2014).

Non–Commercial Torts Exception

The FSIA's non-commercial torts exception confers jurisdiction 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.

28 U.S.C. § 1605(a)(5). In this case, the dispositive question is whether Israel's alleged torts—which took place aboard a U.S.-flagged vessel in international waters—"occur[ed] in the United States." Id.

Under the FSIA, the " ‘United States' includes all territory and waters, continental or insular, subject to the jurisdiction of the United States." Id. § 1603(c). Although this definition speaks primarily in geographic terms, Plaintiffs argue that it also includes U.S.-flagged ships on the high seas.

Plaintiffs begin by noting that the definition of "United States" is introduced by the word "includes" rather than the word "means." Appellants' Br. 13-15. Invoking the rule of statutory interpretation that "[a] definition which declares what a term ‘means' ... excludes any meaning that is not stated," Colautti v. Franklin , 439 U.S. 379, 393 n.10, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (alterations in original) (quoting 2A C. Sands, Statutes and Statutory Construction § 47.07 (4th ed. Supp. 1978)), Plaintiffs contend that the use of "includes" permits us to adopt a broader interpretation of the term "United States." Appellants' Br. 14; see also National Wildlife Federation v. Gorsuch , 693 F.2d 156, 171-72 (D.C. Cir. 1982) (contrasting the "restrictive phrasing" using the word "means" with "the looser phrase ‘includes' ").

Relying on this interpretative leeway, Plaintiffs contend that a U.S.-flagged ship in international waters is part of the "United States." The determinative test, Plaintiffs assert, is whether a U.S.-flagged ship and the territory and waters of the United States "share a comparable degree of U.S. sovereign control." Appellants' Br. 15. Arguing that they do, Plaintiffs invoke several non-FSIA cases that refer to a ship sailing under a particular country's flag in international waters as constructively part of the flag state's territory. Appellants' Br. 19-20; see Patterson v. Eudora , 190 U.S. 169, 176, 23 S.Ct. 821, 47 L.Ed. 1002 (1903) ("A ship which bears a nation's flag is to be treated as a part of the territory of that nation.") (quoting Queen v. Anderson , (1868) L. R. 1 C. C. 161 (U.K.)); Ross v. McIntyre , 140 U.S. 453, 464, 11 S.Ct. 897, 35 L.Ed. 581 (1891) ("The deck of a private American vessel, it is true, is considered, for many purposes, constructively as territory of the United States ...."). Plaintiffs also point out that a country's law may extend to vessels flying its flag. See Lauritzen v. Larsen , 345 U.S. 571, 585, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) (holding that Danish tort law extends to a Danish ship because it "is deemed to be a part of the territory of that sovereignty (whose flag it flies)" (quoting United States v. Flores , 289 U.S. 137, 155, 53 S.Ct. 580, 77 L.Ed. 1086 (1933) )).

Were we tasked with identifying the outer limits of the "United States" in general terms, Plaintiffs' arguments might have some merit. But this case requires that we interpret a particular term in a particular law. And, fatal to Plaintiffs' theory, the cases interpreting the FSIA—as opposed to the ones cited by Plaintiffs—not only "counsel[ ] that [ section 1605(a)(5) ] should be narrowly construed," MacArthur AreaCitizens Ass'n v. Republic of Peru , 809 F.2d 918, 921 (D.C. Cir. 1987), but also require that we read the term "United States" in the FSIA to include only the geographic territory of the United States.

Our starting point is the Supreme Court's discussion of the non-commercial torts exception in Argentine Republic v. Amerada Hess Shipping Corp ., 488 U.S. 428, 434, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989). That case involved a Liberian-chartered oil tanker traveling from the Virgin Islands to Alaska around Cape Horn in South America during the Falklands War. Id. at 431, 109 S.Ct. 683. When the tanker was approximately 600 nautical miles from Argentina, it was attacked by the Argentine military. Id. at 431-32, 109 S.Ct. 683. The Liberian companies that owned and chartered the tanker brought suit against Argentina in the United States under the FSIA's non-commercial torts exception, arguing that because the high seas were within the admiralty jurisdiction of the United States, the tort occurred "in the United States." Id. at 440, 109 S.Ct. 683. Rejecting that view—and calling into question how Plaintiffs in our case read the term "United States"—the Supreme Court explained that it "construe[s] the modifying phrase ‘continental and insular’ to restrict the definition of United States to the continental United States and those islands that are part of the United States or its possessions; any other reading would render this phrase nugatory." Id.

Of course, as Plaintiffs point out, Amerada Hess does not entirely foreclose their position because it primarily addresses whether the term "waters" includes the high seas, see id. at 441, 109 S.Ct. 683 ("Because respondents' injury unquestionably occurred well outside the 3-mile limit then in effect for the territorial waters of the United States, the exception for noncommercial torts cannot apply."), whereas they are concerned with whether the term "territory" is capacious enough to include U.S.-flagged vessels. Although the Supreme Court had no occasion to resolve the question before us—the ship involved was a foreign vessel—it did instruct courts interpreting the term "United States" to give full effect to the "modifying phrase ‘continental and insular’ " and to "apply ‘[t]he canon of construction which teaches that legislation of Congress, unless contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’ " Id. at 440, 109 S.Ct. 683 (alteration in original) (quoting Foley Brothers v. Filardo , 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949) ).

But even if Plaintiffs' reading of "United States" survives Amerada Hess , it is defeated by our court's decision in Persinger v. Islamic Republic of Iran , 729 F.2d 835 (D.C. Cir. 1984). There, plaintiffs sought to invoke the non-commercial torts exception with respect to torts that allegedly occurred at the United States Embassy in Tehran, arguing that Congress has "power to exercise jurisdiction over certain activities at U.S. embassies." Id. at 839. Although the court acknowledged that "the United States has some jurisdiction over its Embassy in Iran," it rejected plaintiffs' invocation of the non-commercial torts exception because the embassy was not within the territorial United States. Id. As the court explained, the use of "the words ‘continental or insular’ to modify the scope of the phrase ‘all territory and waters ... subject to the jurisdiction of the United States' " is "clearly intended to restrict the definition of the United States to the continental United States and such islands as are part of the United States or are its possessions." Id. (alteration in original) (quoting 28 U.S.C. § 1603(c) ). This unambiguous language makes plain that the "United States," at least for purposes of the FSIA, is limited to the geographic territories and waters of...