Matar v. Dichter, No. 07-2579 (2d Cir. 2009)

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07-2579-cv Matar v. Dichter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2008 (Argued: January 16, 2009 Decided: April 16, 2009) Docket No. 07-2579-cv - - - - - - - - - - - - - - - - - - - -x Ra ed Ibrahim Mohamad Matar, on behalf of himself and his deceased wife Eman Ibrahim Hassan Matar, and their deceased children Ayman, Mohamad and Dalia, Mahmoud Subhai Al Huweiti, on behalf of himself and his deceased wife Muna Fahmi Al Huweiti, their deceased sons Subhai and Mohammed and their injured children, Jihad, Tariq, Khamis, and Eman and Marwan Zeino, on his own behalf, Plaintiffs-Appellants, - v.Avraham Dichter, former Director of Israel s General Security Service, Defendant-Appellee. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, KEARSE, HALL, Circuit Judges. Appellants, survivors of an Israeli military attack on 37 a suspected terrorist housed in a residential apartment 38 building in Gaza City, sued defendant Avraham Dichter, 39 former head of the Israeli Security Agency, alleging war 1 crimes and violations of international law, and seeking 2 damages pursuant to the Alien Tort Statute and the Torture 3 Victim Protection Act, 28 U.S.C. § 1350 & note. 4 States District Court for the Southern District of New York 5 (Pauley, J.) dismissed the complaint on the grounds that 6 Dichter is immune from suit under the Foreign Sovereign 7 Immunities Act of 1976, 28 U.S.C. §§ 1602-1611, and that (in 8 the alternative) the suit presents a non-justiciable 9 political question. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 We affirm on the ground The United that Dichter is immune from suit under common law for the acts alleged. MARIA C. LAHOOD, Katherine Gallagher, Jennifer M. Green, on the brief, Center for Constitutional Rights, New York, NY, for Appellants. ROBERT WEINER, Jean E. Kalicki, Matthew A. Eisenstein, on the brief, Arnold & Porter, LLP, Washington, D.C., Kent A. Yalowitz, on the brief, Arnold & Porter, LLP, New York, NY, for Appellee. SERRIN TURNER, David S. Jones, on the brief, Assistant United States Attorneys, for Michael J. Garcia, United States Attorney for the Southern District of New York, John B. Bellinger, III, on the brief, United States Department of State, Jeffrey S. Bucholtz, Acting United States Assistant Attorney General, 2 1 2 3 4 5 6 7 8 9 Douglas N. Letter, Lewis S. Yelin, on the brief, United States Department of Justice, for Amicus Curiae United States of America. DENNIS JACOBS, Chief Judge: Appellants allege that they were injured or lost family 10 members in the 2002 aerial bombing of a Gaza apartment 11 complex by the Israeli Defense Force, and they allege that 12 appellee Avraham Dichter, former head of the Israeli 13 Security Agency, personally participated in the decision to 14 bomb. 15 District of New York (Pauley, J.) dismissed appellants 16 complaint, ruling (1) that Dichter is immune from suit under 17 the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 18 U.S.C. §§ 1602-1611, or (2) that in the alternative, the 19 complaint states a non-justiciable political question. 20 appeal, appellants argue that the FSIA does not extend to 21 former foreign officials such as Dichter; that the FSIA does 22 not immunize certain violations of domestic, foreign, and 23 international law; and that the complaint is justiciable. 24 We conclude that even if the FSIA does not apply, Dichter 25 would nonetheless be immune under common law. 26 affirm the judgment of the district court. The United States District Court for the Southern 3 On We therefore 1 BACKGROUND 2 On July 22, 2002, an Israeli Defense Force aircraft 3 bombed an apartment complex in Gaza City in the Gaza Strip, 4 a Palestinian territory then occupied by Israel. 5 was designed to kill Saleh Mustafah Shehadeh, an alleged 6 leader of the terrorist organization Hamas, and it 7 succeeded.1 8 fourteen people, as well as the destruction of the apartment 9 building and surrounding structures. The attack Collateral damage included the deaths of Appellants were 10 injured in the attack, or represent others who were killed 11 or injured. 12 At the time of the attack, defendant Avraham Dichter 13 was director of the Israeli Security Agency (the Agency ), 14 one of that country s main security and intelligence 15 services.2 16 participated in a practice of targeted assassinations, 17 selecting and locating targets and exercising final say over Plaintiffs allege that the Agency developed and 1 Hamas has been designated a Foreign Terrorist Organization pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1189. See United States Department of State, Foreign Terrorist Organizations Fact Sheet, April 8, 2008, http://www.state.gov/s/ct/rls/fs/08/103392.htm. 2 The complaint refers to the Agency as the General Security Service, a direct translation of the organization s Hebrew name. 4 1 the attacks, and that Dichter participated in the specific 2 decision to authorize the July 2002 attack. 3 The complaint, filed in December 2005, alleges that by 4 committing war crimes and other violations of international 5 law, Dichter is liable for damages pursuant to the Alien 6 Tort Statute (ATS) and the Torture Victim Protection Act 7 (TVPA), 28 U.S.C. § 1350 & note. 8 filed, Dichter had left the Agency and was no longer an 9 official of the State of Israel.3 10 At the time that suit was In February 2006, Dichter moved to dismiss, arguing (1) 11 that he was immune under the FSIA; (2) that the suit 12 presented a non-justiciable political question; and (3) that 13 the suit implicated the act of state doctrine. 14 same time, Israel s Ambassador to the United States, Daniel 15 Ayalon, wrote the United States State Department declaring 16 that anything Mr. Dichter did . . . in connection with the 17 events at issue . . . was in the course of [his] official 18 duties, and in furtherance of official policies of the State 19 of Israel. At about the The district court invited the State Department 3 Dichter subsequently became the Israeli Minister of Public Security. See State of Israel Ministry of Public Security, http://www.mops.gov.il/BPEng/About+MOPS /TheMinister/ (last visited Feb. 11, 2009). 5 1 to state its views, if any on the issues raised in the 2 motion to dismiss, or other issues it deemed relevant to the 3 case. 4 in November 2006, opined that the FSIA afforded immunity for 5 countries, not for individuals, but urged the court to 6 dismiss the suit nevertheless on the ground that Dichter was 7 entitled to immunity under common law as an official of a 8 foreign state. 9 The State Department s statement of interest, filed The district court granted Dichter s motion to dismiss. 10 Rejecting the government s argument that the FSIA did not 11 apply to individual foreign officials, the district court 12 ruled that Dichter was an agency or instrumentality of a 13 foreign state as defined in 28 U.S.C. § 1603. 14 further rejected appellants arguments that FSIA immunity 15 does not extend to acts taken outside the scope of lawful 16 authority and that FSIA immunity is trumped by liability 17 under the TVPA. 18 ruled that appellants suit raised a non-justiciable 19 political question. 20 argument that the suit was barred by the act of state 21 doctrine. The court In the alternative, the district court The court declined to reach Dichter s This appeal followed. 22 6 1 DISCUSSION 2 I. 3 The threshold question is whether Dichter enjoys 4 immunity from suit, either under the FSIA or under common 5 law. 6 the appellants complaint presents a non-justiciable 7 political question. If Dichter is immune, we need not determine whether 8 The FSIA provides the sole basis for obtaining 9 jurisdiction over a foreign state in federal court. 10 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 11 428, 439 (1989). 12 presumptively immune from the jurisdiction of United States 13 courts; unless a specified exception applies, a federal 14 court lacks subject-matter jurisdiction over a claim against 15 a foreign state. 16 (1993). 17 matter jurisdiction under the FSIA must make a prima facie 18 showing that it is a foreign sovereign. 19 Inc. v. Republic of South Africa, 300 F.3d 230, 241 (2d Cir. 20 2002). 21 evidence showing that an exception to the FSIA applies. 22 Cargill Int l S.A. v. M/T Pavel Dybenko, 991 F.2d 1012, 1016 Under the Act, a foreign state is Saudi Arabia v. Nelson, 507 U.S. 349, 355 A defendant seeking dismissal for lack of subject Virtual Countries, The burden then shifts to the plaintiff to present 7 1 (2d Cir. 1993). 2 regarding subject matter jurisdiction under the FSIA for 3 clear error as to factual findings, and de novo as to legal 4 conclusions. 5 133, 138 (2d Cir. 2001). 6 We review a district court s decision Robinson v. Government of Malaysia, 269 F.3d The briefs on appeal join issue on whether the FSIA 7 applies to individual foreign government officials, an open 8 question at the time. 9 505 F.3d 147, 160 (2d Cir. 2007). See Kensington Int l Ltd. v. Itoua, After the briefs were 10 filed, but before oral argument, we had occasion to decide 11 this question directly, and we concluded that an individual 12 official of a foreign state acting in his official capacity 13 is the agency or instrumentality of the state, and is 14 thereby protected by the FSIA. 15 September 11, 2001, 538 F.3d 71, 81 (2d Cir. 2008). 16 district court thus arrived first at the same conclusion. 17 In re Terrorist Attacks on The Appellants would distinguish In re Terrorist Attacks on 18 the ground that the FSIA does not immunize former foreign 19 government officials, and that Dichter--unlike the 20 individual defendants in that case--was no longer an 21 official of a foreign government when suit was filed. 22 Appellants rely on Dole Food Co. v. Patrickson, 538 U.S. 468 8 1 (2003), which considered whether a corporation s status as 2 an instrumentality of a foreign state is defined as of the 3 time an alleged tort or other actionable wrong occurred or, 4 on the other hand, at the time suit is filed. 5 The Dole Food Court looked to the second clause of 28 U.S.C. 6 § 1603(b)(2), which defines an instrumentality to be, inter 7 alia, a corporation a majority of whose shares or other 8 ownership interest is owned by a foreign state or political 9 subdivision thereof. Id. at 471. Noting that the provision is 10 expressed in the present tense, the Supreme Court concluded 11 that instrumentality status [is] determined at the time 12 suit is filed. 13 argue that the agency status of an individual, like the 14 instrumentality status of a corporation, should be 15 determined at the time suit is filed. 16 Dole Food, 538 U.S. at 478. Appellants Appellants did not raise this argument in the district 17 court, and Dichter urges that we decline to consider it on 18 that ground. We could decide the question nevertheless.4 4 The general rule is that an appellate court will not consider an issue raised for the first time on appeal, Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994); but the rule is relaxed to avoid manifest injustice or to consider an issue of law when there is no need for additional fact-finding. Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 302 (2d Cir. 1996). Here, the issue is 9 1 Two of our sister circuits have written on the applicability 2 of Dole Food to individual foreign officials, and they have 3 reached contrary conclusions--albeit in dicta.5 4 decline to decide this close question because, whether the 5 FSIA applies to former officials or not, they continue to 6 enjoy immunity under common law . But we 7 8 II. 9 Before the FSIA, courts determined the immunity of 10 foreign sovereigns pursuant to principles announced by Chief 11 Justice John Marshall in The Schooner Exchange v. McFaddon, 12 11 U.S. (7 Cranch) 116 (1812). 13 ruling that foreign sovereigns have no absolute right to 14 immunity in American courts, the Supreme Court has explained Summarizing Marshall s purely legal and there is no need for additional factfinding. 5 In Belhas v. Ya alon, 515 F.3d 1279, 1284-86 (D.C. Cir. 2008), the D.C. Circuit commented (in dicta) that Dole Food was not applicable to claims of immunity by individual officials, noting that international law had long recognized individual immunity based on an officer s official actions. On the other hand, the Fourth Circuit in Yousuf v. Samantar, 552 F.3d 371, 381-83 (4th Cir. 2009) commented (also in dicta) that Dole Food was directly applicable to claims of immunity by individual officials, noting that the presenttense statutory language cited by the Dole Food court applied to individuals as well as corporations. 10 1 that as a matter of comity, members of the international 2 community had implicitly agreed to waive the exercise of 3 jurisdiction over other sovereigns in certain classes of 4 cases . . . . 5 677, 688 (2004) (citing Schooner Exchange, 11 U.S. at 136). 6 And because these cases typically raised questions of 7 policy [rather] than of law, Marshall suggested that they 8 were for diplomatic, rather than legal discussion. 9 Schooner Exchange, 11 U.S. at 146. Republic of Austria v. Altmann, 541 U.S. Accordingly, courts have 10 generally deferred to the decisions of the political 11 branches--in particular, those of the Executive Branch--on 12 whether to take jurisdiction over actions against foreign 13 sovereigns and their instrumentalities. 14 Central Bank of Nigeria, 461 U.S. 480, 486 (1983). 15 Verlinden B.V. v. From Schooner Exchange until 1952, the Executive 16 routinely called for immunity in all cases against friendly 17 foreign sovereigns. 18 adopted a restrictive theory of foreign sovereign immunity 19 under which invocations of immunity were confined to a 20 foreign sovereign s public acts, but did not extend to its 21 strictly commercial acts. 22 approach proved troublesome. Id. In 1952 the State Department Id. at 486-87. In practice, this In 1976, Congress enacted the 11 1 FSIA in an effort to codify the rules governing foreign 2 sovereign immunity, removing the immunity determination from 3 the political branches by setting out a legal framework, 4 including certain substantive standards and procedural 5 rules, within which issues of immunity are to be decided by 6 the judiciary. 7 Sovereign Immunities Act of 1976, Pub. L. No. 94-583, § 4, 8 90 Stat. 2891, 2891-97 (1976). Altmann, 541 U.S. at 691; see Foreign 9 If (as may be) the FSIA does not apply to former 10 foreign officials, it does not follow that these officials 11 lack immunity. 12 common law and accordingly must be read with a presumption 13 favoring the retention of long-established and familiar 14 principles, except when a statutory purpose to the contrary 15 is evident, Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 16 (1952); see also Attorney General of Canada v. R.J. Reynolds 17 Tobacco Holdings, Inc., 268 F.3d 103, 127 (2d Cir. 2001). 18 In order to abrogate a common-law principle, the statute 19 must speak directly to the question addressed by the 20 common law. 21 (1993) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 22 618, 625 (1978)). The FSIA is a statute that invade[d] the United States v. Texas, 507 U.S. 529, 534 And [a] party contending that 12 1 legislative action changed settled law has the burden of 2 showing that the legislature intended such a change. 3 v. Bock Laundry Machine Co., 490 U.S. 504, 521 (1989). 4 Green The FSIA is silent with regard to former foreign 5 government officials. Appellants argue that Congress 6 therefore must have intended to strip former officials of 7 the immunity they enjoyed under the Schooner Exchange 8 scheme. 9 identified no provision or feature of the FSIA that bespeaks But silence does not suffice; and appellants have 10 intent to abrogate that common-law scheme with respect to 11 former officials. 12 contend, the FSIA does not apply to former government 13 officials, we must look to common law to determine (a) 14 whether former officials are entitled to immunity under the 15 common-law Schooner Exchange scheme, and (b) if so, whether 16 Dichter is entitled to immunity in conformity to the 17 principles accepted by the department of the government 18 charged with the conduct of our foreign relations. 19 Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945). 20 It follows that if, as appellants Common law recognizes the immunity of former foreign 21 officials. At the time the FSIA was enacted, the common law 22 of foreign sovereign immunity recognized an individual 13 1 official s entitlement to immunity for acts performed in 2 his official capacity. 3 Relations Law of the United States § 66(f) (1965); see also 4 Heaney v. Gov t of Spain, 445 F.2d 501, 504 (2d Cir. 1971) 5 (plaintiff s concession that defendant was at all relevant 6 times an employee and agent of the defendant Spanish 7 Government sufficed to dispose of the claim against the 8 individual defendant). 9 than status--does not depend on tenure in office. 10 Restatement (Second) of Foreign An immunity based on acts--rather Is Dichter entitled to common-law immunity? Prior to 11 the enactment of the FSIA, we deferred to the decisions of 12 the political branches--in particular, those of the 13 Executive Branch--on whether to take jurisdiction over 14 actions against foreign sovereigns and their 15 instrumentalities. 16 States--through the State Department and the Department of 17 Justice--filed a Statement of Interest in the district court 18 specifically recognizing Dichter s entitlement to immunity 19 and urging that appellants suit be dismissed on immunity 20 grounds. 21 official, is not categorically eligible for immunity under 22 the FSIA (a question we need not decide here), he is Verlinden, 461 U.S. at 486. The United Accordingly, even if Dichter, as a former foreign 14 1 nevertheless immune from suit under common-law principles 2 that pre-date, and survive, the enactment of that statute. 3 III. 4 5 Appellants two remaining arguments, raised in the FSIA 6 context, are equally applicable in the common-law context. 7 First, they argue that there can be no immunity--statutory 8 or otherwise--for violations of jus cogens (international 9 law norms). But we have previously held that there is no 10 general jus cogens exception to FSIA immunity. 11 Socialist People s Libyan Arab Jamahiriya, 101 F.3d 239, 12 242-45 (2d Cir. 1996) (considering, and rejecting, the 13 argument that a foreign state should be deemed to have 14 forfeited its sovereign immunity whenever it engages in 15 conduct that violates fundamental humanitarian standards . . 16 . . ). 17 Executive s determination of the scope of immunity. 18 Seventh Circuit has explained, 19 20 21 22 23 24 25 26 See Smith v. And in the common-law context, we defer to the Just as the FSIA is the Legislative Branch s determination that a nation should be immune from suit in the courts of this country, the immunity of foreign leaders remains the province of the Executive Branch. The Executive Branch s determination that a foreign leader should be immune from suit even where the 15 As the 1 2 3 4 5 leader is accused of acts that violate jus cogens norms is established by a suggestion of immunity. Ye v. Zemin, 383 F.3d 620, 627 (7th Cir. 2004). 6 premised on the violation of jus cogens does not withstand 7 foreign sovereign immunity. A claim 8 Appellants also argue that any immunity Dichter might 9 enjoy is overridden by his alleged violations of the TVPA, 10 which makes liable [any] individual who, under actual or 11 apparent authority, or color of law, of any foreign nation . 12 . . subjects an individual to extrajudicial killing. 13 U.S.C. § 1350 note sec 2(a). 14 to individuals acting under actual or apparent governmental 15 authority, appellants argue that a grant of immunity to a 16 former official such as Dichter would essentially write the 17 TVPA out of existence. 18 This is incorrect. 28 Because the TVPA only applies As to statutory immunity, the TVPA 19 applies to individual officials who fall into one of the 20 enumerated exceptions listed in 28 U.S.C. § 1605. 21 Belhas, 515 F.3d at 1288; see also H.R. Rep. No. 102-367, at 22 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 88 ( The TVPA 23 is subject to restrictions in the Foreign Sovereign 24 Immunities Act of 1976. ); S. Rep. No. 102-249, at 7 (1991) 16 See 1 ( [T]he TVPA is not meant to override the Foreign Sovereign 2 Immunities Act of 1976. ). 3 common-law immunity is discretionary, the TVPA will apply to 4 any individual official whom the Executive declines to 5 immunize. And because the extension of 6 7 In summary, we need not decide whether the FSIA applies 8 to a former official of a foreign government (a close and 9 interesting question), because if the FSIA does not apply, a 10 former official may still be immune under common-law 11 principles that pre-date, and survive, the enactment of the 12 FSIA. 13 decline jurisdiction over appellants suit, and under our 14 traditional rule of deference to such Executive 15 determinations, we do so. 16 of the district court dismissing appellants complaint for 17 lack of jurisdiction; and because we decide the appeal on 18 immunity grounds, we need not reach the district court s 19 alternative holding that the case raises a non-justiciable 20 political question. Here, the Executive Branch has urged the courts to We therefore affirm the judgment 17

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