United States Court of Appeals, District of Columbia Circuit
October 16, 2017
from the United States District Court for the District of
Columbia (No. 1:16-cv-00049)
M. Schneebaum argued the cause for appellants. With him on
the briefs was Ralph G. Steinhardt.
B. Bellinger, III argued the cause for appellees. With him on
the brief were Robert N. Weiner, Sally L. Pei, and R. Reeves
Before: Rogers and Tatel, Circuit Judges, and Edwards, Senior
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.
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).
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."
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 ...