David Schermerhorn v. State of Israel , 876 F.3d 351 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2017 Decided December 1, 2017
No. 17-7023
DAVID SCHERMERHORN, ET AL.,
APPELLANTS
v.
STATE OF ISRAEL, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00049)
Steven M. Schneebaum argued the cause for appellants.
With him on the briefs was Ralph G. Steinhardt.
John B. Bellinger, III argued the cause for appellees. With
him on the brief were Robert N. Weiner, Sally L. Pei, and R.
Reeves Anderson.
Before: ROGERS and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: On May 29, 2010, Plaintiffs—three
United States citizens and one foreign national—set sail aboard
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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
(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
3
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 (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;
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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 (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
(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 (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
(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 Area
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Citizens 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 (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. When the tanker was
approximately 600 nautical miles from Argentina, it was
attacked by the Argentine military. Id. at 431-32. 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. 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(“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
6
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 (alteration in original)
(quoting Foley Brothers v. Filardo, 336 U.S. 281, 285 (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 the United
States.
Plaintiffs seek to distinguish Persinger on two grounds.
First, they argue that unlike the plaintiffs in Persinger, they rely
on “the unique status of ships” as part of the flag state’s
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territory “deriving from centuries of legal evolution,” rather
than the mere fact that the United States exercises “some form
of jurisdiction” over U.S. embassies on foreign soil.
Appellants’ Br. 29. It is true, as Plaintiffs point out, that several
cases recognize that “for the purposes of jurisdiction a ship,
even on the high seas, is often said to be a part of the territory
of the nation whose flag it flies.” Scharrenberg v. Dollar S. S.
Co., 245 U.S. 122, 127 (1917). But not only are these non-FSIA
cases, they caution that “in the physical sense this expression
is obviously figurative.” Id. (rejecting a claim that seamen
employed on a ship are working “in the country of its registry”
for purposes of a labor law); see also Lauritzen, 345 U.S. at
585 (“Some authorities reject, as a rather mischievous fiction,
the doctrine that a ship is constructively a floating part of the
flagstate . . . .”). Thus, even outside the FSIA context, courts
have sometimes rejected attempts to include U.S.-flagged
vessels within the statutory definition of “United States,” see,
e.g., Cunard S. S. Co. v. Mellon, 262 U.S. 100, 122, 128 (1923)
(holding that the Eighteenth Amendment and National
Prohibition Act’s restriction on the sale and transport of liquors
within “the United States and all territory subject to the
jurisdiction thereof” does not include U.S.-registered ships
outside territorial waters), and we have no indication that the
drafters of the FSIA intended a different result, see Asociacion
de Reclamantes v. United Mexican States, 735 F.2d 1517, 1525
(D.C. Cir. 1984) (Scalia, J.) (explaining that the legislative
history of section 1605(a)(5) indicates that the primary purpose
of the exception “was to enable officials and employees of
foreign sovereigns to be held liable for the traffic accidents
which they cause in this country” (discussing H.R. Rep. No.
94-1487, at 20-21 (1976), as reprinted in 1976 U.S.C.C.A.N.
6605, 6619-20)).
Plaintiffs also seek to distinguish Persinger on the ground
that the U.S. Embassy in Tehran was within the territory of
8
Iran, and thus necessarily could not be “in the United States.”
Appellants’ Br. 30. Persinger’s discussion of what was “in the
United States,” Plaintiffs argue, is dicta. Id. But Plaintiffs
misunderstand the court’s holding in Persinger. Like this
panel, the court in Persinger was asked to determine whether a
particular location was “within the definition of ‘United
States’” under the FSIA. Persinger, 729 F.2d at 839. To resolve
that issue, the court set forth a positive account of what the
FSIA meant by “United States”—“the continental United
States and such islands as are part of the United States or are
its possessions”—and determined that U.S. embassies on
foreign soil did not fall within that definition. Id. Hardly
dictum, this discussion was necessary to the court’s holding.
See De Csepel v. Republic of Hungary, 859 F.3d 1094, 1113
(D.C. Cir. 2017) (explaining that “it is not only the result but
also those portions of the opinion necessary to that result by
which we are bound” (quoting Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 67 (1996))). It would not have been
enough, as Plaintiffs suggest, for the court to rely only on the
fact that the U.S. Embassy in Tehran was on foreign soil, given
that the Persinger plaintiffs argued for an interpretation of
“United States” that included all areas—including those
outside the territorial United States—where the U.S. exercised
some jurisdiction.
Bound by Persinger’s strictly geographical interpretation
of the “United States,” we hold that U.S.-flagged ships on the
high seas do not fall within the FSIA’s non-commercial torts
exception. Accordingly, this exception gives Plaintiffs no basis
for invoking the district court’s jurisdiction in this case.
Terrorism Exception
Congress first enacted the FSIA’s terrorism exception as
part of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified
9
as amended in scattered sections of the U.S. Code). As initially
drafted, the exception—then codified at 28 U.S.C. §
1605(a)(7)—abrogated a foreign sovereign’s immunity in any
case
(7) . . . in which money damages are sought against a
foreign state for personal injury or death that was
caused by an act of torture, extrajudicial killing,
aircraft sabotage, hostage taking, or the provision of
material support or resources . . . [if] engaged in by an
official, employee, or agent of such foreign state while
acting within the scope of his or her office,
employment, or agency, except that the court shall
decline to hear a claim under this paragraph—
(A) if the foreign state was not designated as a
state sponsor of terrorism under [certain statutes]
at the time the act occurred, unless later so
designated as a result of such act . . . .
Pub. L. No. 104-132, § 221, 110 Stat. at 1241-43 (codified at
28 U.S.C. § 1605(a)(7) (2006) (repealed 2008)).
Had this case been brought under section 1605(a)(7),
Plaintiffs “readily concede that this action would be barred . . .
because . . . Israel has never been designated a state sponsor of
terrorism by the Government of the United States.” Appellants’
Br. 32. But Congress amended the FSIA’s terrorism exception
in 2008, and although the primary impetus for the amendment
was to resolve a dispute over whether the exception provided a
cause of action directly against a foreign state, see Owens v.
Republic of Sudan, 864 F.3d 751, 763-65 (D.C. Cir. 2017)
(discussing the history of FSIA amendments), Plaintiffs
believe that it also eliminated the requirement that a state be
designated a sponsor of terrorism for the exception to apply.
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As amended by section 1083 of the National Defense
Authorization Act for Fiscal Year 2008 (NDAA), Pub. L. No.
110-181, § 1083, 122 Stat. 3, 338-44 (2008) (codified at 28
U.S.C. § 1605A), the revised terrorism exception, now codified
at 28 U.S.C. § 1605A, provides in relevant part:
(1) No Immunity.—A foreign state shall not be
immune from the jurisdiction of courts of the United
States or of the States in any case not otherwise
covered by this chapter in which money damages are
sought against a foreign state for personal injury or
death that was caused by an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking,
or the provision of material support or resources for
such an act if such act or provision of material support
or resources is engaged in by an official, employee, or
agent of such foreign state while acting within the
scope of his or her office, employment, or agency.
(2) Claim heard.—The court shall hear a claim under
this section if—
(A)(i)(I) the foreign state was designated as a
state sponsor of terrorism at the time the act
described in paragraph (1) occurred . . . .
28 U.S.C. § 1605A(a) (2012).
Although section 1605A(a) and its predecessor section
1605(a)(7) are nearly identical, Plaintiffs emphasize the slight
shift from the double negative construction of the old
exception—“the court shall decline to hear a claim . . . if the
foreign state was not designated as a state sponsor of
terrorism”—to the affirmative, two-sentence construction of
the new exception—“The court shall hear a claim . . . if . . . the
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foreign state was designated as a state sponsor of terrorism.”
According to Plaintiffs, by so revising the exception, Congress
established a two-tiered approach to jurisdiction. The first
sentence, section 1605A(a)(1), strips all foreign states of
immunity in cases involving “personal injury or death” caused
by certain specified terroristic acts. And the second sentence,
section 1605A(a)(2), provides that when certain other
conditions are met, such as when the defendant state is
designated a state sponsor of terrorism, a court has no choice
but to hear the case. Read together, these sentences, Plaintiffs
argue, mean that when a case is brought only under section
1605A(a)(1), a court still has discretion to dismiss the case on
grounds such as political question, act of state, or forum non
conveniens; by contrast, a court must hear cases that fit the
criteria of section 1605A(a)(2). And although Plaintiffs agree
that their case does not qualify as one the district court must
hear, they contend that the court should have considered
whether it might nonetheless have jurisdiction under section
1605A(a)(1).
Plaintiffs’ reading of the statute is intriguing. Treating
each sentence in isolation, as Plaintiffs urge, we could read
section 1605A(a)(1) as establishing a seemingly unqualified
abrogation of sovereign immunity and section 1605A(a)(2) as
providing only when cases must be heard.
But this construction of the statute simply cannot be
correct. The FSIA is premised on “a presumption of foreign
sovereign immunity” qualified only by a small number of
“discrete and limited exceptions.” Price v. Socialist People’s
Libyan Arab Jamahiriya, 294 F.3d 82, 87-88 (D.C. Cir. 2002)
(collecting cases). As our court has explained, the terrorism
exception, in particular, represents a “delicate legislative
compromise” that rests in part on the fact that “only a defendant
that has been specifically designated by the State Department
12
as a ‘state sponsor of terrorism’ is subject to the loss of its
sovereign immunity.” Id. at 89 (quoting 28 U.S.C.
§ 1605(a)(7)(A)) (discussing the historical evolution of the
FSIA).
Yet under Plaintiff’s view, Congress, without any
acknowledgement whatsoever, abandoned this longstanding
compromise and authorized victims of alleged terrorism to
bring suit against any state without regard to its designation as
a state sponsor of terrorism. Asked at oral argument whether
they knew of any support in the legislative history for their
reading, Plaintiffs’ counsel conceded they knew of none. See
Oral Arg. 12:27-33 (“There is nothing that we have been able
to find in the legislative history that discusses this either
way.”). In fact, the only relevant legislative history discusses
the terrorism exception as though the state-sponsor
requirement remains a mandatory prerequisite to invoking
jurisdiction. See Ensuring Legal Redress for American Victims
of State-Sponsored Terrorism: Hearing on Victims of State-
Sponsored Terrorism Before the H. Comm. on the Judiciary,
110th Cong. 6 (2008), available at 2008 WL 2441390(statement of Rep. Bruce Braley) (explaining that under the
proposed amendment Iraq faced “no threat of future claims
since Iraq is no longer designated as a state sponsor of
terrorism”).
Plaintiffs’ reading of section 1605A is all the more
implausible given that it would require discarding not just the
state-sponsor prerequisite, but also other longstanding
prerequisites to invoking the terrorism exception. Although
this case concerns only the state-sponsor prerequisite, former
section 1605(a)(7)—now section 1605A(a)(2)—listed several
other requirements for invoking the exception. For instance,
section 1605(a)(7)(B) provided that, even if a foreign state was
designated a sponsor of terrorism, “the court shall decline to
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hear a claim . . . if . . . neither the claimant nor the victim was
a national of the United States . . . when the act upon which the
claim is based occurred.” 28 U.S.C. § 1605(a)(7)(B)(ii) (2006).
After eliminating the double negative, the NDAA amendment
carried this language into section 1605A(a)(2) in the clause just
after the state-sponsor requirement. See
id. § 1605A(a)(2)(A)(ii)(I) (“The court shall hear a claim under
this section if . . . the claimant or the victim was . . . a national
of the United States . . . .”). Under Plaintiffs’ interpretation of
section 1605A(a)—which reads the provisions of section
1605A(a)(2) as establishing only when a court must hear a case
but not limiting when a court may hear such a case—this
requirement would also no longer be a necessary prerequisite
to invoking the court’s jurisdiction.
The implications of Plaintiffs’ reading of section
1605A(a)(1) are breathtaking. Without the state-sponsor and
U.S.-national requirements, individuals with no connection at
all to this country could bring suit here against any foreign
sovereign, including a U.S. ally, for any injury or death caused
by an “act of torture, extrajudicial killing, aircraft sabotage,
hostage taking, or the provision of material support or
resources for such an act.” Id. § 1605A(a)(1). As counsel for
Israel pointed out at oral argument—and Plaintiffs’ counsel
agreed—this would mean that “if a foreign national is
concerned that someone has been killed in Iraq or Afghanistan
by the British, that would be an extrajudicial killing and this
court would have jurisdiction.” Compare Oral Arg. 23:46-
24:02 (raising hypothetical), with id. 30:54-31:21 (“Congress
opened the door to that kind of suit.”).
Although Congress may one day decide that the state-
sponsor and U.S.-national requirements are no longer
necessary, we cannot conclude from an unexplained editorial
change that it has already done so. Such “[f]undamental
14
changes in the scope of a statute are not typically accomplished
with so subtle a move.” Kellogg Brown & Root Services Inc. v.
United States ex rel. Carter, 135 S. Ct. 1970, 1977 (2015).
Rather, the FSIA’s terrorism exception continues to apply only
to a foreign state “designated as a state sponsor of terrorism at
the time the act . . . occurred, or was so designated as a result
of such act.” 28 U.S.C. § 1605A(a)(2)(A)(i)(I).
Given the consequences of Plaintiffs’ interpretation, it is
unsurprising that no court has countenanced such a reading of
the terrorism exception after the NDAA amendment. Rather,
cases in this circuit and elsewhere have continued to treat the
state-sponsor requirement as a jurisdictional prerequisite to
invoking the terrorism exception. See, e.g., Owens, 864 F.3d at
777 (Ҥ 1605A strives to hold designated state sponsors of
terrorism accountable for their sponsorship of terror . . . .”);
Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 14 (D.C.
Cir. 2015) (“The exception further requires that (i) the foreign
country was designated a ‘state sponsor of terrorism at the time
[of] the act’ . . . .” (quoting 28 U.S.C. § 1605A(a)(2))); In re
Terrorist Attacks on Sept. 11, 2001, 714 F.3d 109, 115 n.7 (2d
Cir. 2013) (explaining that section 1605A “is only available
against a nation that has been designated by the United States
government as a state sponsor of terrorism at the time of, or due
to, a terrorist act”); Doe v. Bin Laden, 663 F.3d 64, 65 (2d Cir.
2011) (finding it undisputed that section 1605A “is not
available against Afghanistan . . . because the State Department
has not designated Afghanistan as a state sponsor of
terrorism”). Although none of those cases squarely confronted
the precise argument before us, they provide further support for
the proposition that this slight revision to the terrorism
exception did not bring about the dramatic departure from well-
established FSIA practice that Plaintiffs seek.
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II.
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.