13-4334-cv
Rosenberg v. Pasha


                              UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 27th day of August, two thousand fourteen.

PRESENT:
                JOSÉ A. CABRANES,
                CHESTER J. STRAUB,
                RAYMOND J. LOHIER, JR.,
                              Circuit Judges.

_____________________________________

SHIMON ROSENBERG, individually, as Legal Guardian
 of MOSHE TZVI HOLTZBERG and as Personal
Representative of the ESTATES OF RIVKA HOLTZBERG
AND GAVRIEL NOACH HOLTZBERG, NACHMAN
HOLTZBERG, individually and on behalf of other family
members, as Surviving Father of GAVRIEL NOACH
HOLTZBERG, MOSES SHVARZBLAT, individually and
 as Personal Representative of the ESTATE OF NORMA
SHVARZBLAT-RABINOVICH, MARIBETH JESWANI,
individually and as Personal Representative of the
ESTATE OF SANDEEP JESWANI, ANDREINA VARAGONA,
KIA SCHERR, individually and as Personal Representative
of the ESTATES OF NAOMI SCHERR AND ALAN SCHERR,
EMUNAH CHROMAN, Individually and as Personal
Representative of the ESTATE OF BEN ZION CHROMAN,
LINDA RAGSDALE, AUTUMN R. GILLES,

                Plaintiffs-Appellants,

                         v.                                     No. 13-4334-cv
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AHMED SHUJA PASHA, NADEEM TAJ,

               Defendants-Appellees,

DARA LASHKAR-E-TAIBA, AKA
Khidmat-e-Khalq, AKA Jamat ud Dawa,
AKA Markaz ud Dawa, AKA
Tehrik-e-Tahaffuz-e-Awal, SAJID MAJID,
AKA Sajid Mir, AZAM CHEEMA, MAJOR
IQBAL, MAJOR SAMIR ALI, INTER-SERVICES
INTELLIGENCE OF THE ISLAMIC REPUBLIC
OF PAKISTAN, MOHAMAED HAFIZ SAYEED,
ZAKI UR REHMAN LAKHVI,

            Defendants.
_____________________________________

FOR PLAINTIFFS-APPELLANTS:                                    JAMES P. KREINDLER (Andrew J.
                                                              Maloney III, on the brief), Kreindler &
                                                              Kreindler LLP, New York, NY.


FOR DEFENDANTS-APPELLEES:                                     ALLEN C. WASSERMAN (Kevin John
                                                              Walsh, on the brief), Locke Lord LLP,
                                                              New York, NY.

       Appeal from a November 6, 2013 judgment of the United States District Court for the
Eastern District of New York (Dora L. Irizarry, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court be AFFIRMED.

         Appellants are survivors and families of the victims of the 2008 Mumbai terror attacks,
carried out by the Pakistani terrorist organization Lashkar-e-Taiba. They filed suit under the
Antiterrorism Act, 18 U.S.C § 2331 et seq., the Torture Victim Protection Act, note following 28
U.S.C. § 1350, and the Alien Tort Statute, 28 U.S.C. § 1350, against appellees Ahmed Shuja Pasha and
Nadeem Taj, two former directors of the Pakistani intelligence agency known as Inter-Services
Intelligence (“ISI”). Plaintiffs alleged that appellees coordinated the Mumbai attacks with Lashkar-e-
Taiba. The District Court granted appellees’ motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1), holding that Pasha and Taj were protected from suit by common law sovereign
immunity. The District Court based its determination on the Statement of Interest provided by the
United States Department of State, which advised that Pasha and Taj were indeed foreign officials

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acting within the scope of their official positions and should be subject to sovereign immunity. We
assume the parties’ familiarity with the underlying facts and the procedural history of the case.
         In reviewing dismissal for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), we
review legal conclusions de novo and factual findings for clear error. Tandon v. Captain’s Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). A case is properly dismissed under Rule
12(b)(1) when the district court “lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Id.
         Appellants argue that common law sovereign immunity cannot protect foreign officials from
suit for jus cogens violations, which are “norm[s] accepted and recognized by the international
community of states as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same character.” Belhas
v. Ya’alon, 515 F.3d 1279, 1286 (D.C. Cir. 2008) (quoting Siderman de Blake v. Repub. of Arg., 965 F.2d
699, 714 (9th Cir. 1992)). They also argue that formal suggestions of immunity submitted by the
State Department should not be dispositive in a court’s immunity determination. They base their
claim upon the decision of the Fourth Circuit in Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012)
(“Samantar III”), in which the Court of Appeals held that foreign officials “are not entitled to foreign
official immunity for jus cogens violations, even if the acts were performed in the defendant’s official
capacity,” id. at 777, and that Statements of Interest provided by the State Department were given
“considerable, but not controlling, weight” in the immunity determination, id. at 773.
         In so arguing, appellants acknowledge that their position is in tension with the precedent of
this Court, expressed in Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. 2009). There, we addressed the
question of common law immunity for foreign officials accused of jus cogens violations, and explicitly
held that “in the common-law context, we defer to the Executive’s determination of the scope of
immunity” and that “[a] claim premised on the violation of jus cogens does not withstand foreign
sovereign immunity.” Id. at 15. However, appellants assert that: (1) we should instead adopt a
“cogent litmus test similar to the Fourth Circuit,” Appellants’ Br. at 14; and (2) our holding in Matar
was called into question by the Supreme Court’s decision in Samantar v. Yousuf, 560 U.S. 305 (2010)
(“Samantar II”) (affirming a Fourth Circuit opinion, Yousuf v. Samantar, 552 F.3d 371 (4th Cir. 2009)
(“Samantar I”), which held that an individual foreign officer is not protected by the Foreign
Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611).
         We reject both of these arguments. First, Matar was a decision of a panel of this Court. We
are bound to follow that precedent, unless and until it is overruled implicitly or expressly by the
Supreme Court, or by this Court sitting in banc. See United States v. Santiago, 268 F.3d 151, 154 (2d
Cir. 2001). Appellants do not suggest that the Matar holding has been overruled by an in banc
proceeding of this Court, so we turn to the Supreme Court’s opinion in Samantar II.
         We disagree with appellants’ assertion that the Supreme Court’s opinion in Samantar II
constitutes intervening Supreme Court precedent that requires us to alter our clear precedent. The
question before the Supreme Court in Samantar II was whether the Fourth Circuit correctly
determined in Samantar I that “the [Foreign Sovereign Immunities Act] does not govern [a foreign
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official’s] claim of immunity.” Samantar II, 560 U.S. at 325. The Supreme Court’s opinion did not
address common law immunity in any significant way, and certainly did not overrule—either
explicitly or implicitly—our holding in Matar. Rather, in affirming the Fourth Circuit, the Supreme
Court noted at the end of its opinion that “[w]hether [the foreign official] may be entitled to
immunity under the common law . . . [is a] matter[ ] to be addressed in the first instance by the
District Court on remand.” Id. at 325-26.
         Upon remand, the Fourth Circuit held in Samantar III that common law foreign official
immunity did not apply to alleged violations of jus cogens norms, and the Fourth Circuit’s holding
there is what appellants ask us to adopt. However, we are bound by our own precedent, not that of
the Fourth Circuit, and we conclude that nothing in the Supreme Court’s opinion even suggests, let
alone mandates, that we abandon our clear precedent in Matar. Matar remains binding precedent in
this Circuit, and in applying it, the District Court correctly determined that, in light of the Statement
of Interest filed by the State Department recommending immunity for Pasha and Taj, the action
must be dismissed.
                                             CONCLUSION
         We have considered all of appellants’ arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the District Court.

                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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