Al-Tamimi v. Adelson
Decision Date | 29 August 2017 |
Docket Number | Case No. 16–cv–0445 (TSC) |
Parties | Bassem AL–TAMIMI, et al., Plaintiffs, v. Sheldon ADELSON, et al., and United States of America, Defendants. |
Court | U.S. District Court — District of Columbia |
Martin F. McMahon, William Jameson Fox, Esq., Pro Hac Vice, Martin F. McMahon & Associates, Washington, DC, for Plaintiffs.
Barry G. Felder, Foley & Lardner, LLP, David N. Abrams, David Abrams, Attorney at Law, Mark D. Harris, Proskauer Rose, LLP, Jay Philip Lefkowitz, Kirkland & Ellis LLP, Jonathan I. Blackman, Cleary, Gottlieb, Steen & Hamilton, LLP, New York, NY, Michael J. Tuteur, Foley & Lardner, LLP, Boston, MA, Aaron Stein Rabinowitz, William H. Jeffress, Jr., Baker Botts, LLP, Lars H. Liebeler, Lars Liebeler PC, Christopher Michael Loveland, Sheppard Mullin Richter & Hampton LLP, Paul Elias Werner, U.S. Department of Justice, Andrew H. Marks, Law Offices of Andrew Marks, PLLC, Rachel O. Wolkinson, Proskauer Rose LLP, Benjamin Paul Sisney, Jay Alan Sekulow, Jeffrey Harold Ballabon, Pro Hac Vice, Stuart J. Roth, American Center for Law & Justice, Alexis L. Collins, Teale Elizabeth Toweill, Cleary, Gottlieb, Steen & Hamilton, Abbe David Lowell, Michael Bhargava, Norton Rose Fulbright US LLP, Mitchell S. Ettinger, Jennifer L. Spaziano, Skadden, Arps, Slate, Meagher & Flom LLP, Douglas W. Baruch, Elliot E. Polebaum, Jennifer M. Wollenberg, Joseph J. LoBue, Fried, Frank, Harris, Shriver & Jacobson LLP, John Edward Hall, David M. Zionts, Covington & Burling LLP, George Reid Calhoun, V, David Scott Yellin, Ifrah, PLLC, Washington, DC, Lawrence Marc Zell, Israel, David I. Schoen, David I. Schoen, Attorney At Law, Montgomery, AL, Gabriel Groisman, Pro Hac Vice, Coffey Burlington, Miami, FL, Andrew J. Ekonomou, Pro Hac Vice, Lambros Firm, Atlanta, GA, Michael E. Barnsback, O'Hagan Meyer, PLLC, Alexandria, VA, Charles Samuel Fax, Rifkin, Weiner, Livingston, Levitan & Silver, LLC, Bethesda, MD, Joyce E. Smithey, Rifkin, Weiner, Livingston, Levitan & Silver, LLC, Annapolis, MD, Robert Joseph Tolchin, Meir Katz, Pro Hac Vice, The Berkman Law Office, LLC, Brooklyn, NY, for Defendants.
Plaintiffs—Palestinians and Palestinian–Americans from East Jerusalem, the West Bank, the Gaza Strip, and five Palestinian village councils—bring this lawsuit against forty-nine Defendants, including individuals, multi-national corporations, non-governmental organizations, banks, and the United States.1 (ECF No. 77 ("Am. Compl.") pp. 1–10 & ¶¶ 29, 32–77). Plaintiffs allege that Defendants: (1) engaged in a civil conspiracy to expel all non-Jews from East Jerusalem, the West Bank, and the Gaza Strip (Count I); (2) committed war crimes, crimes against humanity, and genocide in violation of the law of nations under the Alien Tort Statute, 28 U.S.C. § 1350 ("ATS"), and the Torture Victim Protection Act, Pub. L. No. 102–256, 106 Stat. 73 (1992) ("TVPA") (Count II); (3) aided and abetted the commission of war crimes (Count III); and (4) engaged in a 30–year pattern of aggravated and ongoing trespass (Count IV). (Id. ¶¶ 118–255). They seek $1 billion in damages. (Id. at ¶¶ 180, 227, 233, 255).
Pursuant to this court's Order, the United States and all other Defendants filed motions to dismiss raising jurisdictional arguments under Federal Rule of Civil Procedure 12(b)(1). (ECF Nos. 104 ("USA Mot."), 107 ("Defs. Mot.")).2 As more fully explained below, upon careful review of the Amended Complaint and the parties' filings, the court concludes that it lacks jurisdiction to hear Plaintiffs' claims against the United States, as Congress has not waived sovereign immunity for such claims. The court further concludes that it lacks subject matter jurisdiction to adjudicate the claims against all Defendants because they are replete with non-justiciable political questions. Accordingly, the court will GRANT both motions to dismiss and will dismiss Plaintiffs' claims against all Defendants.
Plaintiffs bring their claims under the Alien Tort Claims Act, 28 U.S.C. § 1350, also referred to as the "Alien Tort Statute" or "ATS." (Am. Compl. ¶ 1). Those Plaintiffs who are U.S. citizens also assert their claims of war crimes and genocide under the Torture Victims Protection Act of 1991 ("TVPA"), which amends the ATS, 28 U.S.C. § 1350. (Id. ¶ 3).3
Plaintiffs divide the Defendants into five categories: "Donor Defendants,"4 "Settlement and [Israel Defense Forces] Advocate/Promoter,"5 "Pro–Settlement Tax–Exempt Entity Defendants,"6 "Defendant Banks,"7 and "Defendant Construction/Support Firms."8 Plaintiffs allege that the Donor Defendants provide financial support, which helps "promote the growth of settlements" in the West Bank, Gaza, and East Jerusalem—what Plaintiffs refer to as the Occupied Palestinian Territories ("OPT")—that "would necessarily [lead to] the ethnic cleansing of all Palestinian families living near OPT settlements." (Am. Compl. ¶ 32). Plaintiffs allege that Elliott Abrams "encouraged classic ethnic cleansing" by "urg[ing] senior aides to former Prime Ministers Sharon, Barack, and Olmert and settlement officials to continue annexing privately-owned Palestinian property knowing that settlement expansions would necessarily entail the violent expulsion of the local Palestinian population." (Id. ¶ 41).
Plaintiffs claim the Tax–Exempt Entity Defendants violated customary international law; committed perjury, money laundering, and tax fraud; and "knew, like their donors, that the local Palestinian population would be maimed and murdered by violence-prone settlers with those funds" they received. (Id. ¶ 42). Plaintiffs allege that the Defendant Banks "transferred millions of dollars every year to various settlements knowing ... the funds would be used to expand OPT settlements by arming the settler population, who in turn would attack (and sometimes kill) their Palestinian neighbors." (Id. ¶ 55). Finally, Plaintiffs claim that the Defendant Construction/Support Firms: (1) "supplie[d] equipment to Israeli prisons;" (2) "worked with" other firms operating in settlements; (3) "market[ed] ... Israeli real estate opportunities to Americans;" (4) "knew and encouraged the tax-exempt entities to continue funding the ongoing demolition of Palestinian homes;" (5) "list[ed] and s[old] settlement properties built on private Palestinian property," which "necessarily entailed the violent expulsion of Palestinian homeowners;" and (6) in various other ways supported the expansion of settlements in Gaza, the West Bank, and East Jerusalem. (Id. ¶¶ 57–77).
Plaintiffs further ask this court to "draw some big-picture conclusions." (Id. ¶ 78). These include that "the settlement enterprise has been an intentional, profitable, and ongoing activity for at least 40 years;" "it entailed the expulsion of approximately 400,000 Palestinians from the OPT;" and "it also resulted in the demolition or confiscation of 49,000 Palestinian homes." (Id. ).
Federal courts are courts of limited jurisdiction. See Gen. Motors Corp. v. E.P.A , 363 F.3d 442, 448 (D.C. Cir. 2004). The law presumes that "a cause lies outside [the court's] limited jurisdiction" unless the plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). When a defendant files a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Shekoyan v. Sibley Int'l Corp. , 217 F.Supp.2d 59, 63 (D.D.C. 2002).
In evaluating a motion to dismiss under Rule 12(b)(1), the court must "assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged[.]’ " Am. Nat'l Ins. Co. v. F.D.I.C. , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi , 394 F.3d 970, 972 (D.C. Cir. 2005) ). "Nevertheless, ‘the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions.’ " Disner v. United States , 888 F.Supp.2d 83, 87 (D.D.C. 2012) (quoting Speelman v. United States , 461 F.Supp.2d 71, 73 (D.D.C. 2006) ). Moreover, the court "is not limited to the allegations of the complaint," Hohri v. United States , 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds , 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987), and "a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. District of Columbia Bd. of Elections & Ethics , 104 F.Supp.2d 18, 22 (D.D.C. 2000).
All Defendants argue that this court lacks subject matter jurisdiction under the political question doctrine. In Baker v. Carr , the Supreme Court articulated six criteria to determine whether a case involves non-justiciable political questions. 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). These include: (1) "a textually demonstrable constitutional commitment of the issue to a coordinate political department," (2) "a lack of judicially discoverable and manageable standards for resolving it," (3) the "impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion," (4) "the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government," (5) "an unusual need for unquestioning adherence to a political decision already made," and (6) "the potentiality of embarrassment from multifarious pronouncements by various departments on one question."...
To continue reading
Request your trial