United States Court of Appeals, District of Columbia Circuit
from the United States District Court for the District of
Columbia (No. 1:16-cv-00445)
F. McMahon argued the cause and filed the briefs for the
Pulham, Attorney, United States Department of Justice, argued
the cause for the appellees United States of America and
Elliott Abrams. Mark B. Stern and Sharon Swingle, Attorneys,
United States Department of Justice, were with him on brief.
Jonathan I. Blackman argued the cause for the appellees
Sheldon Adelson, et al. Alexis L. Collins, John E. Hall,
David M. Zionts, A. Jeff Ifrah, George R. Calhoun, Barry G.
Felder, Michael J. Tuteur, William H. Jeffress, Jr., Abbe
David Lowell, Douglas W. Baruch, Joseph J. LoBue, Jennifer M.
Wollenberg, William J. Kelly, III, Andrew H. Marks,
Christopher M. Loveland, Mark D. Harris, Rachel O. Wolkinson,
Charles S. Fax, Jay P. Lefkowitz, Lawrence Marc Zell, Lars H.
Liebeler, David Abrams, Jay Alan Sekulow, Benjamin P. Sisney
and David I. Schoen were with him on brief. Michael E.
Barnsback and Liesel J. Schopler entered appearances.
Benjamin P. Sisney, L. Marc Zell and David Abrams were on the
supplemental brief for the defendants-appellees Gush Etzion
Foundation, et al.
Before: Henderson and Pillard, Circuit Judges, and Edwards,
Senior Circuit Judge.
LECRAFT HENDERSON, CIRCUIT JUDGE:
plaintiffs, both Palestinian nationals and Palestinian
Americans, claim the defendants, pro-Israeli American
individuals and entities, are conspiring to expel all
non-Jews from territory whose sovereignty is in
dispute. They sued in federal district court,
pressing four claims: (1) civil conspiracy, (2) genocide and
other war crimes, (3) aiding and abetting genocide and other
war crimes and (4) trespass. Concluding that all four claims
raise nonjusticiable political questions, the district court
dismissed the complaint for lack of subject matter
jurisdiction. We now reverse.
plaintiffs are eighteen Palestinians who mostly reside in the
disputed territory and a Palestinian village council. The
defendants, all American citizens or entities, are eight
high-net-worth individuals, thirteen tax-exempt entities, two
banks, eight construction and support firms and a former
United States deputy national security advisor. The complaint
alleges that the defendants engaged in a conspiracy to expel
all non-Jews from the disputed territory. Specifically, the
individual defendants (excluding Abrams) funneled millions of
dollars through the defendant tax-exempt entities and banks
to Israeli villages called "settlements." Armed
with this financial assistance, the settlement leaders hired
full-time security coordinators who trained a militia of
Israeli settlers to kill Palestinians and confiscate their
property. The defendant construction and support firms
destroyed property belonging to the plaintiff Palestinians
and built settlements in its place and, here in the United
States, the deputy national security advisor publicly
endorsed the settlements. All defendants knew their conduct
would result in the mass killings of Palestinians residing in
the disputed territory.
plaintiffs' complaint includes four claims: (1) each
defendant, save four of the individual defendants as well as
the banks and construction and support firms, engaged in a
civil conspiracy to rid the disputed territory of all
Palestinians; (2) each defendant committed or sponsored
genocide and other war crimes in violation of the law of
nations; (3) seven individual defendants, the two banks, four
construction and support firms and the former U.S. government
official aided and abetted the commission of genocide and
other war crimes; and (4) each of the banks and construction
and support firms trespassed on the plaintiff
Palestinians' property. All plaintiffs bring their claims
under the Alien Tort Statute ("ATS"), 28 U.S.C.
§ 1350. The American citizen plaintiffs also bring their
claims under the Torture Victim Protection Act of 1991
("TVPA"), Pub. L. No. 102-256.
defendants moved to dismiss the complaint for lack of subject
matter jurisdiction, see Fed. R. Civ. P. 12(b)(1),
and the district court granted the motion. Al-Tamimi v.
Adelson, 264 F.Supp.3d 69 (D.D.C. 2017). The court
concluded that the complaint raised at least five
nonjusticiable political questions: "(1) the limits of
state sovereignty in foreign territories where boundaries
have been disputed since at least 1967; (2) the rights of
private landowners in those territories; (3) the legality of
Israeli settlements in the West Bank, Gaza, and East
Jerusalem;  (4) whether the actions of Israeli soldiers and
private settlers in the disputed territories constitute
genocide and ethnic cleansing . . . [and (5)] whether
contributing funds to or performing services in these
settlements is inherently unlawful and tortious."
Id. at 78.
district court reached its dismissal decision using the six
"political question" factors set forth in Baker
v. Carr, 369 U.S. 186 (1962). In Baker, the
United States Supreme Court explained that a claim presents a
political question if it involves:
 a textually demonstrable constitutional commitment of the
issue to a coordinate political department;  or a lack of
judicially discoverable and manageable standards for
resolving it;  or the impossibility of deciding without an
initial policy determination of a kind clearly for
nonjudicial discretion;  or the impossibility of a
court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government;  or an unusual need for unquestioning
adherence to a political decision already made;  or the
potentiality of embarrassment from multifarious
pronouncements by various departments on one question.
Id. at 217. The district court found the first
Baker factor implicated because "[q]uestions
touching upon the history of the ancient city [Jerusalem] and
its present legal and international status are . . .
committed to the Legislature and the Executive, not the
Judiciary" and because "Plaintiffs ask this court
to wade into foreign policy involving one of the most
protracted diplomatic disputes in recent memory."
Al-Tamimi, 264 F.Supp.3d at 78 (internal citations
and quotations omitted). It found "several other"
Baker factors implicated, including the third and
sixth factors, because it believed a judicial decision might
"conflict with the other branches' sensitive
positions regarding the legality and implications of the
settlements, broader questions of Israel's sovereignty,
and the right to private ownership and control over the
disputed lands in the region." Id. at 78-79. In
sum, the district court concluded, "[i]t is hard to
conceive of an issue more quintessentially political in
nature than the ongoing Israeli-Palestinian conflict."
Id.at 78 (internal citation and quotation omitted).
Accordingly, it dismissed the complaint under Fed.R.Civ.P.
12(b)(1). The plaintiffs then timely appealed.