Sharon Ben-Haim; Sol Havivi; Gamliel Elmalem v. Yaakov Neeman

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-1522
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SHARON BEN-HAIM; SOL HAVIVI;
GAMLIEL ELMALEM,
Appellants
v.
YAAKOV NEEMAN; MOSHE KACHLON; EDNA
ARBEL; SIMONA SHTINMETZ; BATYA ARTMAN;
NIVA MILNER; DANIEL EDRI; KONRAD ADENAUER
STIFTUNG; INTERNATIONAL FELLOWSHIP OF
CHRISTIANS AND JEWS; NEW ISRAEL FUND
__________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 12-cv-00351)
District Judge: Honorable Jose L. Linares
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 1, 2013
Before: AMBRO, SHWARTZ and SCIRICA, Circuit Judges
(Opinion filed: November 4, 2013)
_________________
OPINION
_________________
PER CURIAM
Appellants Sharon Ben-Haim, Sol Havivi, and Gamliel Elmalem appeal the
District Court’s order dismissing their amended complaint. For the following reasons, we
will affirm.

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Ben-Haim, Havivi, and Elmalem are fathers who are dissatisfied with the
resolution of their marital and child custody cases in the courts of Israel. They allege that
Israel’s family law system discriminates unfairly against fathers in child custody and
support disputes. On January 17, 2012, they filed suit in the United States District Court
for the District of New Jersey against high-ranking Israeli officials, including a current
Justice of Israel’s Supreme Court, two former cabinet-level Ministers, and a current judge
of the Haifa Rabbinical District Court. They also sued three not-for-profit, charitable
entities, contending that they provide funds, and lobby, for policies that promote
discrimination against fathers in the Israeli courts.
Ben-Haim is a New Jersey resident alien who alleged that his child was kidnapped
from the United States to Israel by the child’s mother. Ben-Haim sought relief in Israel
pursuant to the Hague Convention on the Civil Aspects of International Child Abduction,
but, during the pendency of his lawsuit in Israel, his efforts for interim access to his child
allegedly were thwarted by the defendants. He claims that they failed to take action to
abolish institutionalized policies elevating the rights of mothers over the rights of fathers.
Ben-Haim’s child abduction case ultimately was resolved in Israel’s Supreme Court.
Elmalem is a United States citizen, who currently resides in Israel. He alleged that his
domestic violence arrest in Israel, his child support payments, and his supervised
visitation were unlawful. Havivi also is a United States citizen, currently residing in
Israel. He alleged that social workers have “abused” and “tortured” him by subjecting
his children to psychiatric treatment and medications intended to teach them that they do
not need him in their lives.

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Count 1 of the amended complaint sought money damages under the Alien Tort
Statute (“ATS”), 28 U.S.C. § 1350, for recklessly disregarding torture and crimes against
humanity in violation of international law. Count 2 sought damages for recklessly
disregarding torture under the Torture Victim Protection Act (“TVPA”), 28 U.S.C. §
1350 note. Count 3 sought money damages for reckless disregard for human and parental
rights under the ATS. Count 4 appeared to be a common law claim for emotional
distress, and Counts 5, 6, and 7 sought money damages against the non-profit, charitable
organizations for financing radical feminism, allegedly in violation of the ATS. The
defendants moved to dismiss the amended complaint for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim
upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6).
In an order entered on January 24, 2013, the District Court dismissed all claims
against all defendants for lack of subject matter jurisdiction and for failure to state a
claim. Among other things, the court concluded that the amended complaint alleged no
cognizable ATS claims and that the plaintiffs had not alleged that any of the defendants
tortured them within the meaning of the TVPA. Although the District Court held that the
specific claims under the ATS could not proceed, the court noted in the margin that the
United States Supreme Court had recently heard oral argument in Kiobel v. Royal Dutch
Petroleum Co., 133 S. Ct. 1659 (2013), concerning whether the ATS allows courts to
recognize a cause of action for violations of the law of nations occurring within the
territory of another nation. The District Court reasoned that Kiobel, depending on how it
was decided, could provide yet another basis for dismissing the ATS claims with
prejudice for lack of subject matter jurisdiction.

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Ben-Haim, Elmalem, and Havivi appeal. We have jurisdiction under 28 U.S.C.
§ 1291. We exercise plenary review over the District Court’s dismissal of a complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). See Howard Hess
Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d Cir. 2010) (Rule
12(b)(6)); United States ex rel. Atkinson v. Pennsylvania Shipbuilding Co., 473 F.3d 506,
514 (3d Cir. 2007) (Rule 12(b)(1)). Under Rule 12(b)(1), the District Court must grant a
motion to dismiss if subject matter jurisdiction is lacking. See In re Schering Plough
Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012); see also
Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”).
We will affirm. The ATS provides that “district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation of the
law of nations or a treaty of the United States.” 28 U.S.C. § 1350. The ATS is a
jurisdictional statute that provides no causes of action, but permits federal courts to
recognize private claims “defined by the law of nations and recognized at common law.”
Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004). As a general matter, subject matter
jurisdiction under the ATS is very limited. See id. A claim is not recognized unless it
establishes a violation of a “specific, universal, and obligatory” norm of international
law, see id. at 732 (quoting In re Estate of Marcos Human Rights Litigation, 25 F.3d
1467, 1475 (9th Cir. 1994)).
Although we very much doubt that the allegations in the amended complaint
concerning Israel’s family law system are actionable under the ATS (for example, it was
alleged that Israeli family courts elevate the rights of mothers over the rights of fathers in

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a way that amounts to “crimes against humanity”),1 we need not reach the issue because,
in Kiobel, 133 S. Ct. 1659 (2013), the Supreme Court held that the ATS does not apply
when all of the relevant conduct took place outside the United States. See id. at 1669. In
Kiobel, Nigerian nationals sued Dutch, British, and Nigerian corporations under the ATS,
alleging that the corporations aided and abetted the Nigerian Government in committing
violations of the law of nations – extrajudicial killings, crimes against humanity, torture,
arbitrary arrest and detention, forced exile – in Nigeria. Relying on the statutory canon
against extraterritorial application of federal statutes, the Court held that the presumption
against extraterritoriality applied to claims brought under the ATS and that nothing in the
statute’s text, history, or purposes rebutted that presumption.2 Here, the conduct that
formed the basis of the ATS claims took place in Israel, and thus subject matter
jurisdiction over Counts 1, 3, and 5-7 of the amended complaint is lacking in the federal
courts.
With respect to the claims under the TVPA, dismissal under Rule 12(b)(6) is
proper where the amended complaint fails to state a claim upon which relief may be
granted, such as where the plaintiffs are unable to plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). The plausibility standard “asks for more than a sheer possibility that a defendant
1 The appellee Israeli officials have represented in their brief that, in fact, Israel’s child
custody laws and social welfare policies are based on “the best interests of the child,” the
standard applied in the United States. See Appellee’s Brief at 18.
2 The presumption against extraterritorial application provides that “[w]hen a statute
gives no clear indication of an extraterritorial application, it has none.” Morrison v.
National Australia Bank Ltd., 130 S. Ct. 2869, 2878 (2010). The presumption “serves to
protect against unintended clashes between our laws and those of other nations which
could result in international discord.” E.E.O.C. v. Arabian American Oil Co., 499 U.S.
244, 248 (1991).

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has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Conclusory
allegations are insufficient to survive a motion to dismiss. See Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although the TVPA explicitly establishes
the liability of an individual who subjects another to torture, 28 U.S.C. § 1350 note,
§ 2(a), the District Court correctly determined that the TVPA claims here failed to state a
claim for relief.
Torture under the TVPA is defined as:
(1) [A]ny act, directed against an individual in the offender’s custody or
physical control, by which severe pain or suffering (other than pain or
suffering arising only from or inherent in, or incidental to, lawful
sanctions), whether physical or mental, is intentionally inflicted on that
individual for such purposes as obtaining from that individual or a third
person information or a confession, punishing that individual for an act that
individual or a third person has committed or is suspected of having
committed, intimidating or coercing that individual or a third person, or for
any reason based on discrimination of any kind.
Id. at § 3(b)(1). Torture under the TVPA refers to “extreme, deliberate, and unusually
cruel practices . . . .” See Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326
F.3d 230, 234 (D.C. Cir. 2003) (quoting Price v. Socialist People’s Libyan Arab
Jamahiriya, 294 F.3d 82, 92 (D.C. Cir 2002)) (listing as examples of torture “sustained
systematic beating, application of electric currents to sensitive parts of the body, and
tying up or hanging in positions that cause extreme pain”).
The claims alleged in the amended complaint here fail for numerous reasons but,
among those reasons the District Court correctly held that the amended complaint
contains no allegations of extreme, deliberate, or unusually cruel practices. There are in
fact no allegations of physical harm. Nor were there any allegations of severe mental
harm. Severe mental pain or suffering is defined by the TVPA as

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. . . prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe
physical pain or suffering;
(B) the administration or application, or threatened
administration or application, of mind altering substances or
other procedures calculated to disrupt profoundly the senses
or the personality;
(C) the threat of imminent death; or
(D) the threat that another individual will imminently be
subjected to death, severe physical pain or suffering, or the
administration or application of mind altering substances or
other procedures calculated to disrupt profoundly the senses
or personality.
28 U.S.C. § 1350 note, § 3(b)(2)(A)-(D). Nothing of the sort was alleged in the amended
complaint, and, although Havivi claimed that his children were subjected to forcible
psychiatric treatment and medication, this allegation, even if true, does not support the
plausible inference that the defendants tortured him with the threat that his children
would be subjected to psychiatric treatment and medications. Accordingly, because the
amended complaint failed to allege any facts from which the District Court could
plausibly have inferred that the appellants were subjected to severe physical or mental
pain, Count 2 was properly dismissed for failure to state a claim upon which relief may
be granted.3
For the foregoing reasons, we will affirm the order of the District Court dismissing
the amended complaint. Appellant’s motion to add evidence to the appeal is denied.
3 The District Court also properly declined to exercise jurisdiction on the basis of
diversity of citizenship over Count 4, see 28 U.S.C. § 1332(a). See also Swiger v.
Allegheny Energy, Inc., 540 F.3d 179, 183-84 (3d Cir. 2008) (“In order to be a citizen of
a State within the meaning of the diversity statute, a natural person must be both a citizen
of the United States and be domiciled within the State.” (quoting Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 828 (1989))).

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