Schermerhorn v. State of Israel, No. 17-7023 (D.C. Cir. Dec. 1, 2017) [click for opinion]

Plaintiffs—three U.S. citizens and one foreign national—claimed to have been aboard a U.S. flagged ship, approximately seventy nautical miles from the Gaza Strip, when the ship was allegedly attacked and detained by Israeli Defense Forces in violation of international law. Plaintiffs asserted tort claims against Israel and its ministries.

Defendants moved to dismiss on the ground that they were entitled to immunity from suit under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq. In response, Plaintiffs claimed that the court was permitted to exercise jurisdiction under the FSIA's "non-commercial torts" and "terrorism" exceptions.

The district court found neither exception applicable, and dismissed the case. The Plaintiffs appealed. On December 1, 2017, the D.C. court of appeals affirmed, confirming the narrow applicability of each of these exceptions to the FSIA.

The court explained that the non-commercial torts exception confers jurisdiction for certain tort claims "occurring in the United States" which are caused by the tortious act or omission of a foreign state or any of their officials or employees acting within the scope of their office or employment. The FSIA states that the term "United States" includes all territory and waters, continental or insular, subject to the jurisdiction of the United States.

Plaintiffs argued that the use of "includes" within this definition invited a broad interpretation. They suggested that the test should be whether the U.S.-flagged ship and the territory and waters of the United States "share a comparable degree of U.S. sovereign control," a test they argued was met here.

The court disagreed. It concluded it was bound by the "strictly geographical interpretation" of this phrase it had previously applied in Persinger v. Iran. There, the court had rejected jurisdiction over alleged tortious acts at the U.S. Embassy in Tehran on the basis that the Embassy was not within the territorial United States. The court also referenced the "cannon of construction" that "legislation of Congress, unless contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States." It therefore held that U.S.-flagged ships on the high seas do not fall within the FSIA's non-commercial torts exception. The court next explained that the terrorism exception abrogates immunity in certain circumstances for foreign states where personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources was undertaken by an agent, or similar, of a foreign state within the scope of their office. When originally enacted, it included various exceptions with its operative section. One was that "the court shall decline to hear a clam … if the foreign state was not designated as a state sponsor of terrorism" under certain statutes when the act occurred, or if later designated as a result of that act. In 2008 the legislation was amended, splitting the exceptions out. The new state-sponsor subsection provided "[t]he court shall hear a claim if … the foreign state was designated as a state sponsor of terrorism at the time the act described … occurred."

Plaintiffs readily conceded that their action would be barred under the original legislation. However, they argued that the new language meant the court had discretion to hear cases where the foreign state had not been designated a state sponsor of terrorism.

The court held this "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. There was no evidence in the legislative history supporting Plaintiffs' interpretation. Other cases had also continued to treat the state-sponsor element as a prerequisite since the 2008 amendment.

Further, the state-sponsor obligation was one of several "longstanding prerequisites" for this exception. Another was that either the claimant or victim was a U.S. national. Plaintiffs' interpretation would make this prerequisite discretionary too. The implications of this reading would be "breathtaking." Under Plaintiffs' reading, 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, or similar act of terror. The court could not accept that Congress had intended to effect this through "an unexplained editorial change." It therefore concluded that state-sponsor designation requirement continued to be a mandatory prerequisite for the application of the terrorism exception.