Mohamad v. Rajoub ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ASID MOHAMAD, SHAHID )
MOHAMMAD, SAID MOHAMAD, )
SHAHED AZZAM RAHIM, )
MASHHUD RAHIM, MOHAMAD )
RAHIM, ASIA RAHIM, )
)
Plaintiffs, )
)
v. ) Civil Case No. 08-1800 (RJL)
)
JIBRIL RAJOUB, AMIN AL-HINDI, )
TAWFIK TIRAWI, PALESTINIAN )
AUTHORITY, PALESTINE )
LIBERATION ORGANIZATION, )
)
Defendants. )
)
f.-.
MEMORANDUM OPINION
(September 3D, 2009]) [## 11, 15, 19]
Plaintiffs in this case are the widow and sons of Azzam Rahim, a U.S. citizen, who
was tortured and killed in the West Bank of Israel in September 1995. The defendants are
three individuals (i.e. Jibril Rajoub, Amin AI-Hindi, and Tawfik Tirawi), the Palestinian
Authority, and the Palestine Liberation Organization. Plaintiffs allege that the defendants
violated the Torture Victim Protection Act ("TVPA"), the Alien Tort Statute, and federal
common law. Defendants Palestinian Authority and the Palestine Liberation
Organization ("defendants") have filed a Motion to Dismiss on the grounds that
plaintiffs' complaint failed to state a claim on which relief may be granted under the
TVPA, the Alien Tort Statute, I or federal common. 2 For the following reasons, the Court
GRANTS the defendants' motion.
ANALYSIS
Plaintiffs first allege defendants violated the TVPA, which creates a cause of
action for torts committed by "indivdiual[s]" "in violation of the law of nations or a treaty
of the United States." 28 U.S.C. §§ 1350 & 1350 note § 2(a)(I)-(2). Plaintiffs argue that
the Court should broadly interpret "individual" to include organizations, such as the
Palestinian Authority and the Palestine Liberation Organization, similar to the way courts
often interpret "person." (See Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss ("PI.'s
Opp'n") [Dkt. #14] at 5-7.) Defendants, not surprisingly, argue that "individual" is
limited to human beings. (Mem. of Law in Support of the Palestinian Authority's and the
Palestine Liberation Organization's Mot. to Dismiss ("Mot. to Dismiss") [Dkt. #11] at
9-13.) I agree.
A plain reading of the statute and applicable case law in this jurisdiction, leads this
Court to overwhelmingly conclude that the term "individual" includes only human beings,
IPlaintiffs initially sought relief under the Alien Tort Statute. 28 U.S.C. § 1350. However, this
statute grants district courts jurisdiction over civil actions filed only by "alien[s]." 28 U.S.C. §
1350. And, as plaintiffs admit, the deceased and all ofthe plaintiffs are citizens of the United
States. (See Pl.'s Mem. in Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") [Dkt. #14] at 11.) In
accordance with plaintiffs' concession, the Court also dismisses the Alien Tort Statute's claims.
2The individual defendants have not joined the organizational defendants in filing the motion to
dismiss, (Mem. of Law in Support of the Palestinian Authority's and the Palestine Liberation
Organization's Mot. to Dismiss ("Mot. to Dismiss") [Dkt. #11] at 4 n.l), and the Court does not
address plaintiffs' claims against the individual defendants.
2
and does not encompass the Palestinian Authority and the Palestine Liberation
Organization. See Clinton v. New York, 524 U.S. 417, 428 n. 13, (1998) (noting that
"person" ordinarily has a broader meaning than "individual"); Fisher v. Great Socialist
People's Libyan Arab Jamahiriya, 541 F. Supp. 2d 46,50 n.2 (D.D.C. 2008) ("[T]he
TVPA only creates a cause of action against individuals, not states."); Holland v. Islamic
Republic ofIran , 496 F. Supp. 2d 1,18 (D.D.C. 2005) (holding, based on the plain
language of the statute and the legislative history, that the TVPA applies only to
individuals, not foreign states); Doe v. Exxon Mobil Corp., 393 F. Supp. 2d 20,28
(D.D.C. 2005) ("On balance, the plain reading of the statute strongly suggests that it only
covers human beings, and not corporations."); Collett v. Socialist Peoples' Libyan Arab
Jamahiriya, 362 F. Supp. 2d 230,242 (D.D.C. 2005) (holding the TVPA applies only to
individuals, not Libya or a Libyan intelligence agency); Dammarell v. Islamic Republic of
Iran, No. 01-2224,2005 WL 756090, *31 (D.D.C. Mar. 29, 2005); see also In re
Terrorist Attacks on September 11,2001,392 F. Supp. 2d 539,565 (S.D.N.Y. 2005)
("The TVPA claims against [certain named defendants] are dismissed because these
Defendants are not individuals."); but see Aldana v. Del Monte Fresh Produce, NA., Inc.,
416 F.3d 1242, 1265 (11th Cir. 2005) (allowing a TVPA claims to be raised against
corporations). Of course, this conclusion is also consistent with Congress's decision to
use the term "individual" in the TVPA to describe both those who commit torture and
3
extrajudicial killings and those who are victims. See 28 U.S.C. § 1350 note §§
2(a)(I)-(2).
Moreover, the TVPA's legislative history further supports the conclusion that the
Palestinian Authority and the Palestine Liberation Organization are not proper defendants
under the TVPA. See H.R. Rep. No. 102-367,84,87 (1991) ("Only 'individuals,' not
foreign states, can be sued under the bil1."); S. Rep. No. 102-249, 1,6 (1991) ("The
legislation uses the term 'individual' to make crystal clear that foreign states or their
entities cannot be sued under this bill under any circumstances: only individuals may be
sued."). Simply stated, Congress's plain intent as reflected in the text (which specifies.
only individuals) and the legislative history (which could not be clearer) "was to confine
liability for acts of torture and extrajudicial killing to private individuals." Dammarell,
No. 01-2224, 2005 WL 756090 at *31. Therefore, this Court finds plaintiffs cannot bring
a TVPA claim against the Palestinian Authority or the Palestine Liberation Organization,
and the Court dismisses these claims.
Next, plaintiffs claim to have a cause of action under federal common law against
these two organizations. I disagree. Plaintiffs' claim that "torture carried out by a public
official or one acting in an official capacity" is a violation of federal common law, as
reflected in the Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment and the United Nations' Declaration on the Protection of All
Persons from Being Subjected to Torture, (P1.'s Opp'n at 14), is, at best, strained.
4
Unfortunately, plaintiffs' additional argument that the Supreme Court held this in Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004), is similarly exaggerated. (Pl.'s Opp'n at 12
(arguing that the Supreme Court in Sosa "recognized torture as being on the short list of
actionable torts under international law and so under federal common law").)
The question in Sosa was which causes of action would be pennissible under the
Alien Tort Statute, 28 U.S.C. § 1350. Plaintiffs' claim that the general federal question
jurisdiction statute, 28 U.S.C. § 1331, provides this Court with jurisdiction to fashion a
cause of action for them out of federal common law is not supported by the Sosa decision.
Indeed, the Supreme Court in Sosa explicitly limited its discussion to the Alien Tort
Statute and specifically excluded § 1331:
Our position does not ... imply that every grant of jurisdiction to a federal
court carries with it an opportunity to develop federal common law (so that the
grant of federal-question jurisdiction would be equally as good for our
purposes as § 1350) . . .. Section 1350 was enacted on the congressional
understanding that some courts would exercise jurisdiction by entertaining
some common law claims derived from the law of nations; and we know of no
reason to think that federal-question jurisdiction was extended subject to any
comparable congressional assumption. Further, our holding today is consistent
with the division of responsibilities between federal and state courts after Erie,
as a more expansive common law power related to 28 U.S.C. § 1331 might not
be.
Sosa, 542 U.S. at 731 n.19 (internal citation omitted).
Our Circuit Court has similarly noted that describing actions that are brought under
the Foreign Sovereign Immunities Act (and presumably, the Alien Tort Statute) as
"federal common law" is a "misnomer." Bettis v. Islamic Republic ofIran, 315 F.3d 325,
5
333 (D.C. Cir. 2003). Those actions are based on statutory rights. Id. "Without the
statute, the claims could not arise," and absent a statute creating a cause of action, courts
are not "authorize[d] ... to fashion a complete body of federal law." Id. (internal
quotation omitted).
The Supreme Court itself has also "repeatedly said that a decision to create a
private right of action is one better left to legislative jUdgment in the great majority of
cases." Sosa, 542 U.S. at 727. Surely, caution in developing a cause of action under
federal common law is appropriate in situations such as this where Congress has already
established a cause of action and explicitly defined its scope in the TVPA. "The fact that
Congress has provided at least one statute that provides such a cause of action (the
Torture Victim Protection Act) cautions against the construction of another by judicial
fiat." The Herero People's Reparations Corp. v. Deutsche Bank AG, No. 01-1868, 19
(D.D.C. July 31, 2003).
In short, plaintiffs ask this Court to effectively amend the TVPA's requirements by
treating their claim as one arising under federal common law. To do so would be
inconsistent with the controlling judicial precedent and Congress's legislative directive to
date. Plaintiffs would thus be better off seeking such relief from Congress than the
6
Federal Courts. Accordingly, for all of the aforementioned reasons, the Court must and
will GRANT the defendants' Motion to Dismiss. An Order consistent with this
Memorandum Opinion is attached.
RICRA J. LEON
United States District Judge
7