Al-Tamimi v. Adelson, 17-5207

• Citation: 916 F.3d 1
• Decision Date: 19 February 2019
• Docket Number: No. 17-5207,17-5207
• Parties: Bassem AL-TAMIMI, et al., Appellants v. Sheldon ADELSON, et al., Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

916 F.3d 1

Bassem AL-TAMIMI, et al., Appellants

v.Sheldon ADELSON, et al., Appellees

No. 17-5207

United States Court of Appeals, District of Columbia Circuit.

Argued October 16, 2018

Decided February 19, 2019

Martin F. McMahon, Washington, DC, argued the cause and filed the briefs for the appellants.

Thomas Pulham, Attorney, United States Department of Justice, argued the cause for the appellees United States of America and Elliott Abrams. Mark B. Stern and Sharon Swingle, Attorneys, United States Department of Justice, were with him on brief.

Jonathan I. Blackman, New York, NY, argued the cause for the appellees Sheldon Adelson, et al. Alexis L. Collins, Washington, DC, John E. Hall, Atlanta, GA, David M. Zionts, Washington, DC, A. Jeff Ifrah, Washington, DC, George R. Calhoun, Barry G. Felder, New York, NY, Michael J. Tuteur, Boston, MA, William H. Jeffress, Jr., Washington, DC, Abbe David Lowell, Washington, DC, Douglas W. Baruch, Washington, DC, Joseph J. LoBue, Jennifer M. Wollenberg, Washington, DC, William J. Kelly, III, Andrew H. Marks, Miami, FL, Christopher M. Loveland, Washington, DC, Mark D. Harris, Rachel O. Wolkinson, Washington, D C, Charles S. Fax, Jay P. Lefkowitz, New York, NY, Lawrence Marc Zell, Lars H. Liebeler, Washington, DC, David Abrams, Jay Alan Sekulow, Washington, DC, Benjamin P. Sisney and David I. Schoen were with him on brie f. Michael E. Barnsback and Liesel J. Schopler entered appearances.

Benjamin P. Sisney, L. Marc Zell and David Abrams were on the supplemental brief for the defendants-appellees Gush Etzion Foundation, et al.

Before: Henderson and Pillard, Circuit Judges, and Edwards, Senior Circuit Judge.

Karen LeCraft Henderson, Circuit Judge:

The plaintiffs, both Palestinian nationals and Palestinian Americans, claim the defendants, pro-Israeli American individuals and entities, are conspiring to expel all non-Jews from territory whose sovereignty is in dispute.¹ They sued in federal district court, pressing four claims: (1) civil conspiracy, (2) genocide and other war crimes, (3) aiding and abetting genocide and other war crimes and (4) trespass. Concluding that all four claims raise nonjusticiable political questions, the district court dismissed the complaint for lack of subject matter jurisdiction. We now reverse.

I. BACKGROUND

The plaintiffs are eighteen Palestinians who mostly reside in the disputed territory and a Palestinian village council. The defendants, all American citizens or entities, are eight high-net-worth individuals, thirteen tax-exempt entities, two banks, eight construction and support firms and a former United States deputy national security advisor.² The complaint alleges that the defendants engaged in a conspiracy to expel all non-Jews from the disputed territory. Specifically, the individual defendants (excluding Abrams) funneled millions of dollars through the defendant tax-exempt entities and banks to Israeli villages called "settlements." Armed with this financial assistance, the settlement leaders hired full-time security coordinators who trained a militia of Israeli settlers to kill Palestinians and confiscate their property. The defendant construction and support firms destroyed property belonging to the plaintiff Palestinians and built settlements in its place and, here in the United States, the deputy national security advisor publicly endorsed the settlements. All defendants knew their conduct would result in the mass killings of Palestinians residing in the disputed territory.

The plaintiffs’ complaint includes four claims: (1) each defendant, save four of the individual defendants as well as the banks and construction and support firms, engaged in a civil conspiracy to rid the disputed territory of all Palestinians; (2) each defendant committed or sponsored genocide and other war crimes in violation of the law of nations; (3) seven individual defendants, the two banks, four construction and support firms and the former U.S. government official aided and abetted the commission of genocide and other war crimes; and (4) each of the banks and construction and support firms trespassed on the plaintiff Palestinians’ property. All plaintiffs bring their claims under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350. The American citizen plaintiffs also bring their claims under the Torture Victim Protection Act of 1991 ("TVPA"), Pub. L. No. 102-256.

The defendants moved to dismiss the complaint for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), and the district court granted the motion. Al-Tamimi v. Adelson , 264 F.Supp.3d 69 (D.D.C. 2017). The court concluded that the complaint raised at least five nonjusticiable political questions: "(1) the limits of state sovereignty in foreign territories where boundaries have been disputed since at least 1967; (2) the rights of private landowners in those territories; (3) the legality of Israeli settlements in the West Bank, Gaza, and East Jerusalem; [ ] (4) whether the actions of Israeli soldiers and private settlers in the disputed territories constitute genocide and ethnic cleansing ... [and (5) ] whether contributing funds to or performing services in these settlements is inherently unlawful and tortious." Id. at 78.

The district court reached its dismissal decision using the six "political question" factors set forth in Baker v. Carr , 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In Baker , the United States Supreme Court explained that a claim presents a political question if it involves:

[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] or a lack of judicially discoverable and manageable standards for resolving it; [3] or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] or an unusual need for unquestioning adherence to a political decision already made; [6] or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id . at 217, 82 S.Ct. 691. The district court found the first Baker factor implicated because "[q]uestions touching upon the history of the ancient city [Jerusalem] and its present legal and international status are ... committed to the Legislature and the Executive, not the Judiciary" and because "Plaintiffs ask this court to wade into foreign policy involving one of the most protracted diplomatic disputes in recent memory." Al-Tamimi , 264 F.Supp.3d at 78 (internal citations and quotations omitted). It found "several other[ ]" Baker factors implicated, including the third and sixth factors, because it believed a judicial decision might "conflict with the other branches’ sensitive positions regarding the legality and implications of the settlements, broader questions of Israel’s sovereignty, and the right to private ownership and control over the disputed lands in the region." Id. at 78-79. In sum, the district court concluded, "[i]t is hard to conceive of an issue more quintessentially political in nature than the ongoing Israeli-Palestinian conflict." Id. at 78 (internal citation and quotation omitted). Accordingly, it dismissed the complaint under Fed. R. Civ. P. 12(b)(1).³ The plaintiffs then timely appealed.

II. ANALYSIS

A. Forfeiture Vel Non

Before reviewing the district court’s political question analysis, we address a preliminary issue. The defendants argue that the plaintiffs forfeited their challenge to the district court’s political question holding by improperly incorporating their argument made at a preliminary stage of their appeal into their opening merits brief. The plaintiffs had initially moved for summary reversal, challenging in full in their supporting brief the district court’s political question analysis. In their opening merits brief, the plaintiffs did not repeat their political question argument but instead incorporated it by reference—that is, they directed the court to refer to their brief in support of the earlier motion for summary reversal. The defendants claim the plaintiffs forfeited their political question argument by not making their supporting argument anew—and in full—in their opening merits brief. We disagree.

A party forfeits an argument by failing to raise it in his opening brief. Herron v. Fannie Mae , 861 F.3d 160, 165 (D.C. Cir. 2017). Mentioning an argument "in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones" is tantamount to failing to raise it. Schneider v. Kissinger , 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (quoting United States v. Zannino , 895 F.2d 1, 17 (1st Cir. 1990) ). We ordinarily reject a party’s attempt to evade this rule by incorporating by reference an argument made at an earlier stage of the litigation. See, e.g., Gerlich v. DOJ , 711 F.3d 161, 173 (D.C. Cir. 2013) (incorporation by reference of argument made in interlocutory appeal insufficient); Davis v. PBGC , 734 F.3d 1161, 1167 (D.C. Cir. 2013) (incorporation by reference of argument made in district court insufficient); Corson & Gruman Co. v. NLRB , 899 F.2d 47, 50 n.4 (D.C. Cir. 1990) (incorporation by reference of argument made before agency insufficient). We do this for at least two reasons. First, incorporation by reference can be used to evade word limits. See, e.g., Gerlich , 711 F.3d at 173 (rejecting appellants’ incorporation explanation that "appellee’s counsel would not consent to an extension of the 14,000-word space limitation"); Davis , 734 F.3d at 1167 (rejecting incorporation of argument made in district court on basis it "would circumvent the court’s rules ... regarding the length of briefs"). Second, opponents may not have a fair chance to respond to arguments that are incorporated by reference. See Corson , 899 F.2d at 50 n.4 (rej...