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EFRAT UNGAR, Et Al., Plaintiffs-Appellees, V

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EFRAT UNGAR, Et Al., Plaintiffs-Appellees, V No. 04-2079 ____________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ EFRAT UNGAR, et al., Plaintiffs-Appellees, v. THE PALESTINE LIBERATION ORGANIZATION, et al., Defendants-Appellants. ____________________ On Appeal from the United States District Court for the District of Rhode Island ____________________ BRIEF OF WASHINGTON LEGAL FOUNDATION AND ALLIED EDUCATIONAL FOUNDATION AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS-APPELLEES SUPPORTING AFFIRMANCE ____________________ Joel J. Sprayregen Daniel J. Popeo Jared M. Wayne Richard A. Samp 444 N. Michigan Ave., Suite 2500 (Counsel of Record) Chicago, IL 60611 WASHINGTON LEGAL (312) 836-4004 FOUNDATION 2009 Massachusetts Avenue, NW Washington, DC 20036 (202) 588-0302 Dated: November 24, 2004 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed.R.App.P. 26.1, the Washington Legal Foundation (WLF) and the Allied Educational Foundation (AEF) state that they are corporations organized under § 501(c)(3) of the Internal Revenue Code. Neither WLF nor AEF has parent corporations or stock owned by any publicly held company. TABLE OF CONTENTS Page CORPORATE DISCLOSURE STATEMENT ..................... i TABLE OF AUTHORITIES ................................iv IDENTITY AND INTERESTS OF AMICI CURIAE ................. 1 STATEMENT OF THE CASE ............................... 2 SUMMARY OF ARGUMENT ............................... 4 ARGUMENT .......................................... 7 I. NEITHER THE PA NOR THE PLO IS THE TYPE OF ENTITY THAT CONGRESS HAD IN MIND WHEN IT EXEMPTED FOREIGN STATES FROM SUIT UNDER THE ATA ........... 7 A. Because the Doctrine of Sovereign Immunity Derives Solely from U.S. Law, Not International Law, It Makes Little Sense to Look to International Law Definitions of a “State” in Determining Whether a Foreign Entity Is Entitled to Sovereign Immunity from the Jurisdiction of American Courts ................................ 9 B. U.S. Sovereign Immunity Law Has Been Marked by a Gradual Retraction and a Grant of Considerable Deference to the Executive Branch in Determining When Sovereign Immunity Applies ................... 13 C. In Light of U.S. Policy Toward the PA and the PLO, Including the Non-Recognition of the Existence of a Sovereign Palestine, a Grant of Sovereign Immunity Is Unwarranted ................................. 19 ii Page II. IF THE COURT DECIDES TO SEEK GUIDANCE FROM THE RESTATEMENT, THE PA AND PLO FAIL TO MEET THAT STANDARD ..................................... 26 CONCLUSION ........................................ 31 iii TABLE OF AUTHORITIES Page Cases: American Ins. Assn. v. Garamendi, 539 U.S. 396 (2003) .................................... 15 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989) ..................................... 7 Banco Nacionale de Cuba v. Sabbatino, 376 U.S. 398 (1964) .................................... 25 Estates of Ungar v. Palestinian Authority, 228 F. Supp. 2d 40 (D.R.I. 2002) ............................ 3 Estates of Ungar v. Palestinian Authority, 315 F. Supp. 2d 164 (D.R.I. 2002) ("Ungar IV") ............. 3, 4, 8, 9 Gelston v. Hoyt, 3 Wheat (16 U.S.) 246 (1818) ...........................15, 16 Gilmore v. Palestinian Interim Self-Government Authority, No. 01-853 (D.D.C., pending) ...........................20, 21 Haig v. Agee, 453 U.S. 280 (1981) .................................... 17 Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .................................... 18 Klinghoffer v. Achille Lauro Lines, 937 F.2d 44 (2d Cir. 1991) ..............................9, 24 Knox v. Palestine Liberation Organization, 306 F. Supp. 2d 424 (S.D.N.Y. 2004) ......................passim National City Bank of New York v. Republic of China, 348 U.S. 356 (1955) .................................... 11 Penhallow v. Doane's Administrators, 3 Dall. (3 U.S.) 54 (1795) ................................ 17 Republic of Austria v. Altmann, 124 S. Ct. 2240 (2004) ...........................11, 12, 14, 15 The Schooner Exchange v. McFaddon, 7 Cranch (11 U.S.) 116 (1812) ............................. 10 Texas v. White, 7 Wall. (74 U.S.) 700 (1869) ............................ 16-17 iv Page Verlinden B.V. v. Central Bank of America, 461 U.S. 480 (1983) ..................................13, 14 Statutes: Anti-Terrorism Act of 1991 (ATA), 18 U.S.C. § 2333 et seq. ...............................passim 18 U.S.C. § 2333(a) ................................. 2 18 U.S.C. § 2337(2) ..............................passim Anti-Terrorism Act of 1987, P.L. 100-204, 22 U.S.C. §§ 5201 et seq. .............................. 22-23 22 U.S.C. § 5201(b) ................................ 23 Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq. ...............................passim 28 U.S.C. § 1603(a) ................................. 8 28 U.S.C. § 1605(a)(3) ............................... 11 Special International Securities Assistance Act, 22 U.S.C. § 3401 et seq. ................................. 22 Statute of 1794, ch. 50 § 3 ................................. 16 Miscellaneous: Geneva Memorandum, http://countrystudies.us/israel/27.htm ........ 21, 22 Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, T.S. No. 881, 165 L.N.T.S. 19 .......9, 10 Restatement Third on Foreign Relations Law ...................passim § 201 ..................................... 3, 4, 9, 16 H.R. Rep. 102-1085 Pt. 1 (Dec. 31, 1992) ...................... 24 v Page Fed.R.Civ.P. 12(b)(1) .................................... 3 Fed.R.Civ.P. 12(b)(6) .................................... 3 vi IDENTITY AND INTERESTS OF AMICUS CURIAE The interests of the amici curiae are set forth more fully in the accompanying motion for leave to file this brief. The Washington Legal Foundation (WLF) is a non-profit public interest law and policy center with supporters in all 50 states, including many in Massachusetts. WLF devotes a substantial portion of its resources to defending national security. To that end, WLF has appeared in numerous courts to support the right of American victims of international terrorism to seek compensation by filing damage suits against the perpetrators. See, e.g., Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004); Jacobsen v. Oliver, No. 01-1810 (D.D.C., dec. pending). The Allied Educational Foundation (AEF) is a non-profit charitable foundation based in Englewood, New Jersey. Founded in 1964, AEF is dedicated to promoting education in diverse areas of study, such as law and public policy, and has appeared as amicus curiae in the Supreme Court and this Court on a number of occasions. STATEMENT OF THE CASE This case arises in the aftermath of the brutal slaying of Yaron Ungar (an American citizen) and his wife Efrat on June 9, 1996. They were traveling by car following a wedding in Israel when gunmen affiliated with the terrorist group Hamas opened fire on the car. Both Yaron and Efrat were killed in the attack; their infant son Yishai was in the car but was unhurt. Several members of Hamas were eventually convicted in Israeli courts on charges related to the murders. In March 2000, the Ungars’ estates as well as several of their surviving relatives (including their two children) filed a suit in U.S. District Court for the District of Rhode Island under the Anti-Terrorism Act of 1991 (ATA), 18 U.S.C. §§ 2333, et seq. 1 Named as defendants in the amended complaint were Hamas, several individual members of Hamas, the Palestinian Authority ("PA"), and the Palestine Liberation Organization ("PLO"). The amended complaint alleged, inter alia, that the PA and PLO “praised, advocated, encouraged, solicited, and incited” the terrorist acts of Hamas and its members, including the murders of the Ungars. Amended Complaint ¶ 47. In November 2002, the district court denied the PA’s and the PLO’s Fed.R.Civ.P. 12(b)(6) motion to dismiss the complaint; the motion had sought dismissal on several grounds. Estates of Ungar v. Palestinian Authority, 228 F. Supp. 2d 40 (D.R.I. 2002) (“Ungar II”). The district court held, inter alia, that 1 The ATA creates a cause of action for damages for any U.S. national “injured in his or her person, property, or business by reason of an act of international terrorism.” 18 U.S.C. § 2333(a). 2 neither the PA nor the PLO was a “foreign state” entitled to sovereign immunity from a suit under the ATA. Id. at 48-49. 2 In May 2003, this Court dismissed an interlocutory appeal from that denial. The PA and PLO nonetheless refused to provide Appellees (hereinafter, “the Ungars”) with requested discovery, asserting that the were entitled to sovereign immunity and thus should not be required to respond to discovery requests. The PA and PLO thereafter filed a Fed.R.Civ.P. 12(b)(1) motion to dismiss the complaint, asserting that -- in light of their status as the embodiment of a foreign state -- the district court lacked subject matter jurisdiction over the amended complaint. In April 2004, the district court denied the Rule 12(b)(1) motion. Estates of Ungar v. Palestinian Authority, 315 F. Supp. 2d 164 (D.R.I. 2004) (“Ungar IV”). The court stated that a defendant’s claim to be a “foreign state” within the meaning of § 2337(2) (and thus exempt from suit under the ATA) should be evaluated under the criteria established by § 201 of the Restate- ment Third on Foreign Relations Law for judging whether an entity is a “state.” 2 The cause of action created by the ATA does not extend to suits against a foreign sovereign. See 18 U.S.C. § 2337(2) (“No action shall be maintained under section
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