     07-2579-cv
     Matar v. Dichter


 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                             August Term, 2008
 6
 7
 8   (Argued: January 16, 2009                   Decided: April 16, 2009)
 9
10                           Docket No. 07-2579-cv
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   Ra’ed Ibrahim Mohamad Matar, on behalf of himself and his
15   deceased wife Eman Ibrahim Hassan Matar, and their deceased
16   children Ayman, Mohamad and Dalia, Mahmoud Subhai Al
17   Huweiti, on behalf of himself and his deceased wife Muna
18   Fahmi Al Huweiti, their deceased sons Subhai and Mohammed
19   and their injured children, Jihad, Tariq, Khamis, and Eman
20   and Marwan Zeino, on his own behalf,
21
22                      Plaintiffs-Appellants,
23
24               - v.-
25
26   Avraham Dichter, former Director of Israel’s General
27   Security Service,
28
29                      Defendant-Appellee.
30
31   - - - - - - - - - - - - - - - - - - - -x
32

33         Before:          JACOBS, Chief Judge, KEARSE, HALL,
34                          Circuit Judges.
35
36         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.    The United

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.   We affirm on the ground   that Dichter

10   is immune from suit under common law for the acts alleged.

11                               MARIA C. LAHOOD, Katherine
12                               Gallagher, Jennifer M. Green, on
13                               the brief, Center for
14                               Constitutional Rights, New York,
15                               NY, for Appellants.
16
17                               ROBERT WEINER, Jean E. Kalicki,
18                               Matthew A. Eisenstein, on the
19                               brief, Arnold & Porter, LLP,
20                               Washington, D.C., Kent A.
21                               Yalowitz, on the brief, Arnold &
22                               Porter, LLP, New York, NY, for
23                               Appellee.
24
25                               SERRIN TURNER, David S. Jones,
26                               on the brief, Assistant United
27                               States Attorneys, for Michael J.
28                               Garcia, United States Attorney
29                               for the Southern District of New
30                               York, John B. Bellinger, III, on
31                               the brief, United States
32                               Department of State, Jeffrey S.
33                               Bucholtz, Acting United States
34                               Assistant Attorney General,

                                   2
1                                  Douglas N. Letter, Lewis S.
2                                  Yelin, on the brief, United
3                                  States Department of Justice,
4                                  for Amicus Curiae United States
5                                  of America.
6
7    DENNIS JACOBS, Chief Judge:
8
9        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.   The United States District Court for the Southern

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.      On

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.    We therefore

26   affirm the judgment of the district court.


                                    3
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.     The attack

5    was designed to kill Saleh Mustafah Shehadeh, an alleged

6    leader of the terrorist organization Hamas, and it

7    succeeded.1    Collateral damage included the deaths of

8    fourteen people, as well as the destruction of the apartment

9    building and surrounding structures.    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    Plaintiffs allege that the Agency developed and

16   participated in a “practice” of “‘targeted assassinations,’”

17   selecting and locating targets and exercising final say over


          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.    At the time that suit was

8    filed, Dichter had left the Agency and was no longer an

9    official of the State of Israel.3

10       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.   At about the

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.”   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.   The State Department’s statement of interest, filed

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 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.   The court

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.   In the alternative, the district court

18   ruled that appellants’ suit raised a non-justiciable

19   political question.   The court declined to reach Dichter’s

20   argument that the suit was barred by the act of state

21   doctrine.   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.    If Dichter is immune, we need not determine whether

6    the appellants’ complaint presents a non-justiciable

7    political question.

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).    “Under the Act, a foreign state is

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.”     Saudi Arabia v. Nelson, 507 U.S. 349, 355

16   (1993).    A defendant seeking dismissal for lack of subject

17   matter jurisdiction under the FSIA must make a prima facie

18   showing that it is a foreign sovereign.     Virtual Countries,

19   Inc. v. Republic of South Africa, 300 F.3d 230, 241 (2d Cir.

20   2002).    The burden then shifts to the plaintiff to present

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


                                     7
1    (2d Cir. 1993).   We review a district court’s decision

2    regarding subject matter jurisdiction under the FSIA for

3    clear error as to factual findings, and de novo as to legal

4    conclusions.   Robinson v. Government of Malaysia, 269 F.3d

5    133, 138 (2d Cir. 2001).

6        The briefs on appeal join issue on whether the FSIA

7    applies to individual foreign government officials, an open

8    question at the time.   See Kensington Int’l Ltd. v. Itoua,

9    505 F.3d 147, 160 (2d Cir. 2007).   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.”   In re Terrorist Attacks on

15   September 11, 2001, 538 F.3d 71, 81 (2d Cir. 2008).     The

16   district court thus arrived first at the same conclusion.

17       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.”    Id. at 471.

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.”   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.”   Dole Food, 538 U.S. at 478.    Appellants

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       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     But we

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 .

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).      Summarizing Marshall’s

13   ruling that foreign sovereigns have no absolute right to

14   immunity in American courts, the Supreme Court has explained



     purely legal and there is no need for additional fact-
     finding.
          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 present-
     tense 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 . . . .”   Republic of Austria v. Altmann, 541 U.S.

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.   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.”     Verlinden B.V. v.

14   Central Bank of Nigeria, 461 U.S. 480, 486 (1983).

15       From Schooner Exchange until 1952, the Executive

16   routinely called for immunity in all cases against friendly

17   foreign sovereigns.   Id.   In 1952 the State Department

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.   Id. at 486-87.    In practice, this

22   approach proved troublesome.    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.    Altmann, 541 U.S. at 691; see Foreign

7    Sovereign Immunities Act of 1976, Pub. L. No. 94-583, § 4,

8    90 Stat. 2891, 2891-97 (1976).

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.    The FSIA is a statute that “invade[d] the

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.”     United States v. Texas, 507 U.S. 529, 534

21   (1993) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S.

22   618, 625 (1978)).    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.”     Green

3    v. Bock Laundry Machine Co., 490 U.S. 504, 521 (1989).

4        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.   But silence does not suffice; and appellants have

9    identified no provision or feature of the FSIA that bespeaks

10   intent to abrogate that common-law scheme with respect to

11   former officials.   It follows that if, as appellants

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       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.”    Restatement (Second) of Foreign

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).    An immunity based on acts--rather

9    than status--does not depend on tenure in office.

10       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.”   Verlinden, 461 U.S. at 486.   The United

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.”   Accordingly, even if Dichter, as a former foreign

21   official, is not categorically eligible for immunity under

22   the FSIA (a question we need not decide here), he is


                                   14
1    nevertheless immune from suit under common-law principles

2    that pre-date, and survive, the enactment of that statute.

3

4                                III.

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.   See Smith v.

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   . .”).   And in the common-law context, we defer to the

17   Executive’s determination of the scope of immunity.   As the

18   Seventh Circuit has explained,

19             Just as the FSIA is the Legislative
20             Branch’s determination that a nation
21             should be immune from suit in the courts
22             of this country, the immunity of foreign
23             leaders remains the province of the
24             Executive Branch. The Executive Branch’s
25             determination that a foreign leader
26             should be immune from suit even where the

                                  15
1             leader is accused of acts that violate
2             jus cogens norms is established by a
3             suggestion of immunity.
4
5    Ye v. Zemin, 383 F.3d 620, 627 (7th Cir. 2004).     A claim

6    premised on the violation of jus cogens does not withstand

7    foreign sovereign immunity.

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.”      28

13   U.S.C. § 1350 note sec 2(a).    Because the TVPA only applies

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.   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.    See

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
1    (“[T]he TVPA is not meant to override the Foreign Sovereign

2    Immunities Act of 1976.”).    And because the extension of

3    common-law immunity is discretionary, the TVPA will apply to

4    any individual official whom the Executive declines to

5    immunize.

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.   Here, the Executive Branch has urged the courts to

13   decline jurisdiction over appellants’ suit, and under our

14   traditional rule of deference to such Executive

15   determinations, we do so.    We therefore affirm the judgment

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.




                                   17
