The case of the day is Gilmore v. Palestinian Interim Self-Government Authority (D.C. Cir. 2016). Esh Kodesh Gilmore, a US citizen, was killed in a terrorist attack in Jerusalem in 2000. His estate and survivors sued the Palestinian Authority and the PLO, asserting claims under the Anti-Terrorism Act and on common law theories. At first, the PA and the PLO defaulted, but they later moved to vacate the default and moved to dismiss, arguing that the suit “was a politically-motivated attack on the PA and therefore non-justiciable,” and that Palestine was a state and therefore entitled to foreign sovereign immunity. The court vacated the default and denied the motion to dismiss. But the PA then failed to answer, and again was defaulted. After a hearing to assess damages, the PA again moved to vacate the default, this time filing an answer and promising to participate fully in the litigation, including in discovery. The court vacated the default.
In discovery, the PA asserted the state secrets and law enforcement privileges as to material created by the General Intelligence Services, the PA’s intelligence agency. The court ordered an in camera review of the documents withheld, along with an ex parte submission by the PA explaining the documents. At the close of discovery, the PA sought summary judgment, arguing that there was no admissible evidence “linking Gilmore’s murder to any particular person.” The evidence consisted of statements published online by the Israeli Ministry of Foreign Affairs, a passage from the book, The Seventh War, which recounted a prison interview that implicated Muhanad Abu Halawa, a former PA soldier, in the murder, a statement by an associate of Halawa written and signed while in Israeli police custody, the testimony of the associate during the trial of Halawa’s supervisor, and an expert report by a former IDF intelligence officer. The court agreed that the evidence was inadmissible and granted summary judgment. Gilmore’s estate and survivors appealed.
The court affirmed the decision. It refused to rule in the PA’s favor on the alternative theory that the lower court lacked personal jurisdiction, holding that the invocation of the FSIA as a defense in the motion to dismiss was insufficient to preserve the personal jurisdiction defense, and that because the PA had not raised the defense in its first motion to dismiss, the defense was waived. The court went on to hold that the lower court had not abused its discretion by vacating the defaults in light of the policy favoring trial on the merits. And the court held that the procedure of allowing an ex parte memorandum to explain documents submitted in camera for a privilege review was permissible in the circumstances of the case.
The reason I note the case is that here, the PA took the position that Palestine is a state and therefore entitled to FSIA sovereign immunity, while in Safra v. Palestinian Authority and Sokolow v. PLO, it took the contrary position in order to assert lack of personal jurisdiction (since in those cases, an exception to FSIA immunity would have applied had the FSIA applied, and since a foreign state has no due process rights and cannot assert want of personal jurisdiction if an FSIA exception applies). I haven’t examined the timing of the assertions in the three cases, but I wonder whether they are mutually consistent, or whether the PA has simply been taking the positions necessitated by the case at hand.