David Schermerhorn v. State of Israel

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2017 Decided December 1, 2017

No. 17-7023

DAVID SCHERMERHORN, ET AL.,

APPELLANTS

v.

STATE OF ISRAEL, ET AL.,

APPELLEES

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 for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: On May 29, 2010, Plaintiffs—three

United States citizens and one foreign national—set sail aboard

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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

3

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. § 1603(c). Although this definition

speaks primarily in geographic terms, Plaintiffs argue that it

also includes U.S.-flagged ships on the high seas.

Plaintiffs begin by noting that the definition of “United

States” is introduced by the word “includes” rather than the

word “means.” Appellants’ Br. 13-15. Invoking the rule of

statutory interpretation that “[a] definition which declares what

a term ‘means’ . . . excludes any meaning that is not stated,”

Colautti v. Franklin, 439 U.S. 379, 393 n.10 (1979) (alterations

in original) (quoting 2A C. Sands, Statutes and Statutory

Construction § 47.07 (4th ed. Supp. 1978)), Plaintiffs contend

that the use of “includes” permits us to adopt a broader

interpretation of the term “United States.” Appellants’ Br. 14;

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see also National Wildlife Federation v. Gorsuch, 693 F.2d

156, 171-72 (D.C. Cir. 1982) (contrasting the “restrictive

phrasing” using the word “means” with “the looser phrase

‘includes’”).

Relying on this interpretative leeway, Plaintiffs contend

that a U.S.-flagged ship in international waters is part of the

“United States.” The determinative test, Plaintiffs assert, is

whether a U.S.-flagged ship and the territory and waters of the

United States “share a comparable degree of U.S. sovereign

control.” Appellants’ Br. 15. Arguing that they do, Plaintiffs

invoke several non-FSIA cases that refer to a ship sailing under

a particular country’s flag in international waters as

constructively part of the flag state’s territory. Appellants’ Br.

19-20; see Patterson v. Eudora, 190 U.S. 169, 176 (1903) (“A

ship which bears a nation’s flag is to be treated as a part of the

territory of that nation.” (quoting Queen v. Anderson, (1868)

L. R. 1 C. C. 161 (U.K.)); Ross v. McIntyre, 140 U.S. 453, 464

(1891) (“The deck of a private American vessel, it is true, is

considered, for many purposes, constructively as territory of

the United States . . . .”). Plaintiffs also point out that a

country’s law may extend to vessels flying its flag. See

Lauritzen v. Larsen, 345 U.S. 571, 585 (1953) (holding that

Danish tort law extends to a Danish ship because it “is deemed

to be a part of the territory of that sovereignty (whose flag it

flies)” (quoting United States v. Flores, 289 U.S. 137, 155

(1933))).

Were we tasked with identifying the outer limits of the

“United States” in general terms, Plaintiffs’ arguments might

have some merit. But this case requires that we interpret a

particular term in a particular law. And, fatal to Plaintiffs’

theory, the cases interpreting the FSIA—as opposed to the ones

cited by Plaintiffs—not only “counsel[] that [section

1605(a)(5)] should be narrowly construed,” MacArthur Area

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Citizens Ass’n v. Republic of Peru, 809 F.2d 918, 921 (D.C.

Cir. 1987), but also require that we read the term “United

States” in the FSIA to include only the geographic territory of

the United States.

Our starting point is the Supreme Court’s discussion of the

non-commercial torts exception in Argentine Republic v.

Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989). That

case involved a Liberian-chartered oil tanker traveling from the

Virgin Islands to Alaska around Cape Horn in South America

during the Falklands War. Id. at 431. When the tanker was

approximately 600 nautical miles from Argentina, it was

attacked by the Argentine military. Id. at 431-32. The Liberian

companies that owned and chartered the tanker brought suit

against Argentina in the United States under the FSIA’s non-

commercial torts exception, arguing that because the high seas

were within the admiralty jurisdiction of the United States, the

tort occurred “in the United States.” Id. at 440. Rejecting that

view—and calling into question how Plaintiffs in our case read

the term “United States”—the Supreme Court explained that it

“construe[s] the modifying phrase ‘continental and insular’ to

restrict the definition of United States to the continental United

States and those islands that are part of the United States or its

possessions; any other reading would render this phrase

nugatory.” Id.

Of course, as Plaintiffs point out, Amerada Hess does not

entirely foreclose their position because it primarily addresses

whether the term “waters” includes the high seas, see id. at 441

(“Because respondents' injury unquestionably occurred well

outside the 3-mile limit then in effect for the territorial waters

of the United States, the exception for noncommercial torts

cannot apply.”), whereas they are concerned with whether the

term “territory” is capacious enough to include U.S.-flagged

vessels. Although the Supreme Court had no occasion to

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resolve the question before us—the ship involved was a foreign

vessel—it did instruct courts interpreting the term “United

States” to give full effect to the “modifying phrase ‘continental

and insular’” and to “apply ‘[t]he canon of construction which

teaches that legislation of Congress, unless contrary intent

appears, is meant to apply only within the territorial jurisdiction

of the United States.’” Id. at 440 (alteration in original)

(quoting Foley Brothers v. Filardo, 336 U.S. 281, 285 (1949)).

But even if Plaintiffs’ reading of “United States” survives

Amerada Hess, it is defeated by our court’s decision in

Persinger v. Islamic Republic of Iran, 729 F.2d 835 (D.C. Cir.

1984). There, plaintiffs sought to invoke the non-commercial

torts exception with respect to torts that allegedly occurred at

the United States Embassy in Tehran, arguing that Congress

has “power to exercise jurisdiction over certain activities at

U.S. embassies.” Id. at 839. Although the court acknowledged

that “the United States has some jurisdiction over its Embassy

in Iran,” it rejected plaintiffs’ invocation of the non-

commercial torts exception because the embassy was not

within the territorial United States. Id. As the court explained,

the use of “the words ‘continental or insular’ to modify the

scope of the phrase ‘all territory and waters . . . subject to the

jurisdiction of the United States’” is “clearly intended to

restrict the definition of the United States to the continental

United States and such islands as are part of the United States

or are its possessions.” Id. (alteration in original) (quoting 28

U.S.C. § 1603(c)). This unambiguous language makes plain

that the “United States,” at least for purposes of the FSIA, is

limited to the geographic territories and waters of the United

States.

Plaintiffs seek to distinguish Persinger on two grounds.

First, they argue that unlike the plaintiffs in Persinger, they rely

on “the unique status of ships” as part of the flag state’s

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territory “deriving from centuries of legal evolution,” rather

than the mere fact that the United States exercises “some form

of jurisdiction” over U.S. embassies on foreign soil.

Appellants’ Br. 29. It is true, as Plaintiffs point out, that several

cases recognize that “for the purposes of jurisdiction a ship,

even on the high seas, is often said to be a part of the territory

of the nation whose flag it flies.” Scharrenberg v. Dollar S. S.

Co., 245 U.S. 122, 127 (1917). But not only are these non-FSIA

cases, they caution that “in the physical sense this expression

is obviously figurative.” Id. (rejecting a claim that seamen

employed on a ship are working “in the country of its registry”

for purposes of a labor law); see also Lauritzen, 345 U.S. at

585 (“Some authorities reject, as a rather mischievous fiction,

the doctrine that a ship is constructively a floating part of the

flagstate . . . .”). Thus, even outside the FSIA context, courts

have sometimes rejected attempts to include U.S.-flagged

vessels within the statutory definition of “United States,” see,

e.g., Cunard S. S. Co. v. Mellon, 262 U.S. 100, 122, 128 (1923)

(holding that the Eighteenth Amendment and National

Prohibition Act’s restriction on the sale and transport of liquors

within “the United States and all territory subject to the

jurisdiction thereof” does not include U.S.-registered ships

outside territorial waters), and we have no indication that the

drafters of the FSIA intended a different result, see Asociacion

de Reclamantes v. United Mexican States, 735 F.2d 1517, 1525

(D.C. Cir. 1984) (Scalia, J.) (explaining that the legislative

history of section 1605(a)(5) indicates that the primary purpose

of the exception “was to enable officials and employees of

foreign sovereigns to be held liable for the traffic accidents

which they cause in this country” (discussing H.R. Rep. No.

94-1487, at 20-21 (1976), as reprinted in 1976 U.S.C.C.A.N.

6605, 6619-20)).

Plaintiffs also seek to distinguish Persinger on the ground

that the U.S. Embassy in Tehran was within the territory of

8

Iran, and thus necessarily could not be “in the United States.”

Appellants’ Br. 30. Persinger’s discussion of what was “in the

United States,” Plaintiffs argue, is dicta. Id. But Plaintiffs

misunderstand the court’s holding in Persinger. Like this

panel, the court in Persinger was asked to determine whether a

particular location was “within the definition of ‘United

States’” under the FSIA. Persinger, 729 F.2d at 839. To resolve

that issue, the court set forth a positive account of what the

FSIA meant by “United States”—“the continental United

States and such islands as are part of the United States or are

its possessions”—and determined that U.S. embassies on

foreign soil did not fall within that definition. Id. Hardly

dictum, this discussion was necessary to the court’s holding.

See De Csepel v. Republic of Hungary, 859 F.3d 1094, 1113

(D.C. Cir. 2017) (explaining that “it is not only the result but

also those portions of the opinion necessary to that result by

which we are bound” (quoting Seminole Tribe of Florida v.

Florida, 517 U.S. 44, 67 (1996))). It would not have been

enough, as Plaintiffs suggest, for the court to rely only on the

fact that the U.S. Embassy in Tehran was on foreign soil, given

that the Persinger plaintiffs argued for an interpretation of

“United States” that included all areas—including those

outside the territorial United States—where the U.S. exercised

some jurisdiction.

Bound by Persinger’s strictly geographical interpretation

of the “United States,” we hold that U.S.-flagged ships on the

high seas do not fall within the FSIA’s non-commercial torts

exception. Accordingly, this exception gives Plaintiffs no basis

for invoking the district court’s jurisdiction in this case.

Terrorism Exception

Congress first enacted the FSIA’s terrorism exception as

part of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified

9

as amended in scattered sections of the U.S. Code). As initially

drafted, the exception—then codified at 28 U.S.C. §

1605(a)(7)—abrogated a foreign sovereign’s immunity in any

case

(7) . . . in which money damages are sought against a

foreign state for personal injury or death that was

caused by an act of torture, extrajudicial killing,

aircraft sabotage, hostage taking, or the provision of

material support or resources . . . [if] engaged in by an

official, employee, or agent of such foreign state while

acting within the scope of his or her office,

employment, or agency, except that the court shall

decline to hear a claim under this paragraph—

(A) if the foreign state was not designated as a

state sponsor of terrorism under [certain statutes]

at the time the act occurred, unless later so

designated as a result of such act . . . .

Pub. L. No. 104-132, § 221, 110 Stat. at 1241-43 (codified at

28 U.S.C. § 1605(a)(7) (2006) (repealed 2008)).

Had this case been brought under section 1605(a)(7),

Plaintiffs “readily concede that this action would be barred . . .

because . . . Israel has never been designated a state sponsor of

terrorism by the Government of the United States.” Appellants’

Br. 32. But Congress amended the FSIA’s terrorism exception

in 2008, and although the primary impetus for the amendment

was to resolve a dispute over whether the exception provided a

cause of action directly against a foreign state, see Owens v.

Republic of Sudan, 864 F.3d 751, 763-65 (D.C. Cir. 2017)

(discussing the history of FSIA amendments), Plaintiffs

believe that it also eliminated the requirement that a state be

designated a sponsor of terrorism for the exception to apply.

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As amended by section 1083 of the National Defense

Authorization Act for Fiscal Year 2008 (NDAA), Pub. L. No.

110-181, § 1083, 122 Stat. 3, 338-44 (2008) (codified at 28

U.S.C. § 1605A), the revised terrorism exception, now codified

at 28 U.S.C. § 1605A, provides in relevant part:

(1) No Immunity.—A foreign state shall not be

immune from the jurisdiction of courts of the United

States or of the States in any case not otherwise

covered by this chapter in which money damages are

sought against a foreign state for personal injury or

death that was caused by an act of torture,

extrajudicial killing, aircraft sabotage, hostage taking,

or the provision of material support or resources for

such an act if such act or provision of material support

or resources is engaged in by an official, employee, or

agent of such foreign state while acting within the

scope of his or her office, employment, or agency.

(2) Claim heard.—The court shall hear a claim under

this section if—

(A)(i)(I) the foreign state was designated as a

state sponsor of terrorism at the time the act

described in paragraph (1) occurred . . . .

28 U.S.C. § 1605A(a) (2012).

Although section 1605A(a) and its predecessor section

1605(a)(7) are nearly identical, Plaintiffs emphasize the slight

shift from the double negative construction of the old

exception—“the court shall decline to hear a claim . . . if the

foreign state was not designated as a state sponsor of

terrorism”—to the affirmative, two-sentence construction of

the new exception—“The court shall hear a claim . . . if . . . the

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foreign state was designated as a state sponsor of terrorism.”

According to Plaintiffs, by so revising the exception, Congress

established a two-tiered approach to jurisdiction. The first

sentence, section 1605A(a)(1), strips all foreign states of

immunity in cases involving “personal injury or death” caused

by certain specified terroristic acts. And the second sentence,

section 1605A(a)(2), provides that when certain other

conditions are met, such as when the defendant state is

designated a state sponsor of terrorism, a court has no choice

but to hear the case. Read together, these sentences, Plaintiffs

argue, mean that when a case is brought only under section

1605A(a)(1), a court still has discretion to dismiss the case on

grounds such as political question, act of state, or forum non

conveniens; by contrast, a court must hear cases that fit the

criteria of section 1605A(a)(2). And although Plaintiffs agree

that their case does not qualify as one the district court must

hear, they contend that the court should have considered

whether it might nonetheless have jurisdiction under section

1605A(a)(1).

Plaintiffs’ reading of the statute is intriguing. Treating

each sentence in isolation, as Plaintiffs urge, we could read

section 1605A(a)(1) as establishing a seemingly unqualified

abrogation of sovereign immunity and section 1605A(a)(2) as

providing only when cases must be heard.

But this construction of the statute 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.” Price v. Socialist People’s

Libyan Arab Jamahiriya, 294 F.3d 82, 87-88 (D.C. Cir. 2002)

(collecting cases). As our court has explained, the terrorism

exception, in particular, represents a “delicate legislative

compromise” that rests in part on the fact that “only a defendant

that has been specifically designated by the State Department

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as a ‘state sponsor of terrorism’ is subject to the loss of its

sovereign immunity.” Id. at 89 (quoting 28 U.S.C.

§ 1605(a)(7)(A)) (discussing the historical evolution of the

FSIA).

Yet under Plaintiff’s view, Congress, without any

acknowledgement whatsoever, abandoned this longstanding

compromise and authorized victims of alleged terrorism to

bring suit against any state without regard to its designation as

a state sponsor of terrorism. Asked at oral argument whether

they knew of any support in the legislative history for their

reading, Plaintiffs’ counsel conceded they knew of none. See

Oral Arg. 12:27-33 (“There is nothing that we have been able

to find in the legislative history that discusses this either

way.”). In fact, the only relevant legislative history discusses

the terrorism exception as though the state-sponsor

requirement remains a mandatory prerequisite to invoking

jurisdiction. See Ensuring Legal Redress for American Victims

of State-Sponsored Terrorism: Hearing on Victims of State-

Sponsored Terrorism Before the H. Comm. on the Judiciary,

110th Cong. 6 (2008), available at 2008 WL 2441390

(statement of Rep. Bruce Braley) (explaining that under the

proposed amendment Iraq faced “no threat of future claims

since Iraq is no longer designated as a state sponsor of

terrorism”).

Plaintiffs’ reading of section 1605A is all the more

implausible given that it would require discarding not just the

state-sponsor prerequisite, but also other longstanding

prerequisites to invoking the terrorism exception. Although

this case concerns only the state-sponsor prerequisite, former

section 1605(a)(7)—now section 1605A(a)(2)—listed several

other requirements for invoking the exception. For instance,

section 1605(a)(7)(B) provided that, even if a foreign state was

designated a sponsor of terrorism, “the court shall decline to

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hear a claim . . . if . . . neither the claimant nor the victim was

a national of the United States . . . when the act upon which the

claim is based occurred.” 28 U.S.C. § 1605(a)(7)(B)(ii) (2006).

After eliminating the double negative, the NDAA amendment

carried this language into section 1605A(a)(2) in the clause just

after the state-sponsor requirement. See

id. § 1605A(a)(2)(A)(ii)(I) (“The court shall hear a claim under

this section if . . . the claimant or the victim was . . . a national

of the United States . . . .”). Under Plaintiffs’ interpretation of

section 1605A(a)—which reads the provisions of section

1605A(a)(2) as establishing only when a court must hear a case

but not limiting when a court may hear such a case—this

requirement would also no longer be a necessary prerequisite

to invoking the court’s jurisdiction.

The implications of Plaintiffs’ reading of section

1605A(a)(1) are breathtaking. Without the state-sponsor and

U.S.-national requirements, 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, extrajudicial killing, aircraft sabotage,

hostage taking, or the provision of material support or

resources for such an act.” Id. § 1605A(a)(1). As counsel for

Israel pointed out at oral argument—and Plaintiffs’ counsel

agreed—this would mean that “if a foreign national is

concerned that someone has been killed in Iraq or Afghanistan

by the British, that would be an extrajudicial killing and this

court would have jurisdiction.” Compare Oral Arg. 23:46-

24:02 (raising hypothetical), with id. 30:54-31:21 (“Congress

opened the door to that kind of suit.”).

Although Congress may one day decide that the state-

sponsor and U.S.-national requirements are no longer

necessary, we cannot conclude from an unexplained editorial

change that it has already done so. Such “[f]undamental

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changes in the scope of a statute are not typically accomplished

with so subtle a move.” Kellogg Brown & Root Services Inc. v.

United States ex rel. Carter, 135 S. Ct. 1970, 1977 (2015).

Rather, the FSIA’s terrorism exception continues to apply only

to a foreign state “designated as a state sponsor of terrorism at

the time the act . . . occurred, or was so designated as a result

of such act.” 28 U.S.C. § 1605A(a)(2)(A)(i)(I).

Given the consequences of Plaintiffs’ interpretation, it is

unsurprising that no court has countenanced such a reading of

the terrorism exception after the NDAA amendment. Rather,

cases in this circuit and elsewhere have continued to treat the

state-sponsor requirement as a jurisdictional prerequisite to

invoking the terrorism exception. See, e.g., Owens, 864 F.3d at

777 (Ҥ 1605A strives to hold designated state sponsors of

terrorism accountable for their sponsorship of terror . . . .”);

Mohammadi v. Islamic Republic of Iran, 782 F.3d 9, 14 (D.C.

Cir. 2015) (“The exception further requires that (i) the foreign

country was designated a ‘state sponsor of terrorism at the time

[of] the act’ . . . .” (quoting 28 U.S.C. § 1605A(a)(2))); In re

Terrorist Attacks on Sept. 11, 2001, 714 F.3d 109, 115 n.7 (2d

Cir. 2013) (explaining that section 1605A “is only available

against a nation that has been designated by the United States

government as a state sponsor of terrorism at the time of, or due

to, a terrorist act”); Doe v. Bin Laden, 663 F.3d 64, 65 (2d Cir.

2011) (finding it undisputed that section 1605A “is not

available against Afghanistan . . . because the State Department

has not designated Afghanistan as a state sponsor of

terrorism”). Although none of those cases squarely confronted

the precise argument before us, they provide further support for

the proposition that this slight revision to the terrorism

exception did not bring about the dramatic departure from well-

established FSIA practice that Plaintiffs seek.

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II.

For the foregoing reasons, the judgment of the district

court is affirmed.

So ordered.