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Matar v. Dichter

April 16, 2009

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.



SYLLABUS BY THE COURT

Appellants, survivors of an Israeli military attack on a suspected terrorist housed in a residential apartment building in Gaza City, sued defendant Avraham Dichter, former head of the Israeli Security Agency, alleging war crimes and violations of international law, and seeking damages pursuant to the Alien Tort Statute and the Torture Victim Protection Act, 28 U.S.C. § 1350 & note. The United States District Court for the Southern District of New York (Pauley, J.) dismissed the complaint on the grounds that Dichter is immune from suit under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602-1611, and that (in the alternative) the suit presents a non-justiciable political question. We affirm on the ground that Dichter is immune from suit under common law for the acts alleged.

The opinion of the court was delivered by: Dennis Jacobs, Chief Judge

Argued: January 16, 2009

Before: JACOBS, Chief Judge, KEARSE, HALL, Circuit Judges.

Appellants allege that they were injured or lost family members in the 2002 aerial bombing of a Gaza apartment complex by the Israeli Defense Force, and they allege that appellee Avraham Dichter, former head of the Israeli Security Agency, personally participated in the decision to bomb. The United States District Court for the Southern District of New York (Pauley, J.) dismissed appellants' complaint, ruling (1) that Dichter is immune from suit under the Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 1602-1611, or (2) that in the alternative, the complaint states a non-justiciable political question. On appeal, appellants argue that the FSIA does not extend to former foreign officials such as Dichter; that the FSIA does not immunize certain violations of domestic, foreign, and international law; and that the complaint is justiciable. We conclude that even if the FSIA does not apply, Dichter would nonetheless be immune under common law. We therefore affirm the judgment of the district court.

BACKGROUND

On July 22, 2002, an Israeli Defense Force aircraft bombed an apartment complex in Gaza City in the Gaza Strip, a Palestinian territory then occupied by Israel. The attack was designed to kill Saleh Mustafah Shehadeh, an alleged leader of the terrorist organization Hamas, and it succeeded.*fn1 Collateral damage included the deaths of fourteen people, as well as the destruction of the apartment building and surrounding structures. Appellants were injured in the attack, or represent others who were killed or injured.

At the time of the attack, defendant Avraham Dichter was director of the Israeli Security Agency (the "Agency"), one of that country's main security and intelligence services.*fn2 Plaintiffs allege that the Agency developed and participated in a "practice" of "'targeted assassinations,'" selecting and locating targets and exercising final say over the attacks, and that Dichter "participated in the specific decision to authorize" the July 2002 attack.

The complaint, filed in December 2005, alleges that by committing war crimes and other violations of international law, Dichter is liable for damages pursuant to the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350 & note. At the time that suit was filed, Dichter had left the Agency and was no longer an official of the State of Israel.*fn3

In February 2006, Dichter moved to dismiss, arguing (1) that he was immune under the FSIA; (2) that the suit presented a non-justiciable political question; and (3) that the suit implicated the act of state doctrine. At about the same time, Israel's Ambassador to the United States, Daniel Ayalon, wrote the United States State Department declaring that "anything Mr. Dichter did . . . in connection with the events at issue . . . was in the course of [his] official duties, and in furtherance of official policies of the State of Israel." The district court invited the State Department to "state its views, if any" on the issues raised in the motion to dismiss, or other issues it deemed relevant to the case. The State Department's statement of interest, filed in November 2006, opined that the FSIA afforded immunity for countries, not for individuals, but urged the court to dismiss the suit nevertheless on the ground that Dichter was entitled to immunity under common law as an official of a foreign state.

The district court granted Dichter's motion to dismiss. Rejecting the government's argument that the FSIA did not apply to individual foreign officials, the district court ruled that Dichter was an "agency or instrumentality of a foreign state" as defined in 28 U.S.C. § 1603. The court further rejected appellants' arguments that FSIA immunity does not extend to acts taken outside the scope of lawful authority and that FSIA immunity is trumped by liability under the TVPA. In the alternative, the district court ruled that appellants' suit raised a non-justiciable political question. The court declined to reach Dichter's argument that the suit was barred by the act of state doctrine. This appeal followed.

DISCUSSION

I.

The threshold question is whether Dichter enjoys immunity from suit, either under the FSIA or under common law. If Dichter is immune, we need not determine whether the appellants' ...


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