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Schermerhorn v. State of Israel

United States Court of Appeals, District of Columbia Circuit

December 1, 2017

David Schermerhorn, et al., Appellants
v.
State of Israel, et al., Appellees

          Argued October 16, 2017

         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

          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 (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. ยง 1603(c). Although this definition speaks primarily in geographic terms, Plaintiffs ...


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