United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2011 Decided August 5, 2011
Reissued August 12, 2011
No. 10-7085
ESTATE OF MARK PARSONS, ET AL.,
APPELLANTS
v.
PALESTINIAN AUTHORITY, ALSO KNOWN AS PALESTINIAN
INTERIM SELF-GOVERNMENT AUTHORITY AND PALESTINIAN
LIBERATION ORGANIZATION, ALSO KNOWN AS PLO,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01847)
Edward MacAllister argued the cause for appellants.
With him on the briefs were Richard D. Heideman, Tracy
Reichman Kalik, and Steven R. Perles.
Laura G. Ferguson argued the cause for appellees. With
her on the brief were Mark J. Rochon and Matthew T.
Reinhard. Charles F. McAleer, Jr. and Timothy P. O'Toole
entered appearances.
2
Before: HENDERSON, TATEL, and BROWN, Circuit
Judges.
Opinion for the court filed by Circuit Judge TATEL.
Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge TATEL.
Opinion concurring in part and dissenting in part filed by
Circuit Judge BROWN.
TATEL, Circuit Judge: While providing security for a
U.S. State Department convoy in the Gaza Strip, Mark
Parsons was killed by a roadside bomb. Parsons’s estate and
his family sued the Palestinian Authority under the Anti-
Terrorism Act of 1991, alleging that the Authority had
provided material support for and conspired with the terrorist
or terrorists who detonated the bomb. Concluding that the
Parsons family had produced insufficient evidence to create
genuine disputes of material fact on these Anti-Terrorism Act
claims, the district court granted summary judgment to the
Palestinian Authority. Although we agree with the district
court that the family’s conspiracy claim theories are too
speculative to survive summary judgment, we believe a
reasonable juror could conclude that Palestinian Authority
employees provided material support to the bomber.
Accordingly, we affirm with respect to the conspiracy claim
but reverse as to material support.
I.
In the midst of the Second Intifada, on October 15, 2003,
a United States Department of State convoy traveled through
the Gaza Strip on the way to interview Palestinian Fulbright
Scholarship applicants. Besides State Department officials,
3
the convoy included a Palestinian Authority Civil Police car
in the lead position and DynCorp International employees
under contract with the State Department to provide security.
While the convoy traveled along Salahadeen Road,
approximately 20 meters—or about one-fourth of a city
block—from a manned Palestinian Authority security
checkpoint, a roadside bomb exploded, killing DynCorp
employee Mark Parsons and two of his co-workers.
Immediately after the bombing, Palestinian Authority
security and police forces took control of the site, gathered
forensic evidence, and launched an investigation run by the
Palestinian Authority’s Preventive Security Services. United
States and Israeli authorities also launched their own
investigations.
During its investigation, the Palestinian Authority
detained and interrogated six suspects, “a number of” whom,
according to the official having overall responsibility for the
investigation, “admitted to possessing and planting explosive
charges in the past, targeted at Israeli military incursions into
Gaza.” One of those suspects was Amer Qarmout, a leader of
the Popular Resistance Committees (“PRC”). During his
interrogation, Qarmout recounted how, two or three days prior
to the bombing, he supervised the digging of a hole on
Salahadeen Street in which he planned to place a bomb.
Qarmout and “fellow members in the Resistance” dug the
hole “in front of the [Palestinian Authority] National Security
Service.” Qarmout explained: “I introduced myself to the
National Security soldiers and asked them to turn their
attention from the young men who were planting the device.”
But denying he ever planted a bomb, Qarmout claimed that
after the “explosion targeting the US convoy took place . . . I
called Joma’a Abou Loze[, who had helped dig the hole,] and
4
asked him not to move about in the place and not to plant the
device because of the dangers involved.”
Qarmout also admitted to having possessed three bombs
one month prior to the bombing. He described the bombs as
using detonating cables, employing urea as the explosive
material, and weighing 30 to 35 kilograms, 20 to 25
kilograms, and 10 to 12 kilograms. According to Qarmout, it
was the 12 kilogram bomb that he had intended to plant on
Salahadeen Road.
In the course of their investigations, the Palestinian
Authority and the FBI conducted forensic analyses of the
bomb that killed Parsons. Both determined, among other
things, that the bomb contained urea nitrate. The Authority’s
analysis added that the bomb weighed approximately 30 to 40
kilograms and was detonated using cables. Moreover, a memo
found in the Palestinian Authority’s investigative file
concludes, based on “[t]he lid of the device, the type of
detonator, the cables used, the poorly connected batteries, the
type of explosive material, [and] the outer casing of the
device[,] . . . that the structure of this device is the same
structure used by the Popular Resistance Committees.”
To this day, neither the Palestinian Authority nor Israel
nor the United States has publicly identified the bomber. The
reason, according to the Palestinian Authority, is that all three
investigations remain open and the “identity of the individuals
or group responsible for planning and carrying out the
bombing has never been determined.” Appellees’ Br. 2. The
Parsons family disputes whether the Palestinian Authority has
indeed failed to identify those responsible for the attack.
Nearly four years after the bombing, Parsons’s estate, his
siblings, and his parents’ estate filed this lawsuit in the U.S.
5
District Court for the District of Columbia against the
Palestinian Authority and the Palestinian Liberation
Organization, alleging that each organization was at least
partially responsible for the attack. Although the family’s
complaint raised several claims, at issue in this appeal are just
two, both brought under the Anti-Terrorism Act of 1991
against the Palestinian Authority (but not the Palestinian
Liberation Organization) for allegedly providing material
support to and conspiring with the terrorist or terrorists who
set and detonated the bomb. In support of these claims, the
Parsons family advanced several theories for linking the
Palestinian Authority to the attack, only three of which are
relevant to this appeal: that Palestinian National Security
forces at the nearby checkpoint agreed to look the other way
while the bomb was planted; that Authority personnel tipped
off the bomber about the convoy; and that the Authority
provided weapons to the bomber.
Among the evidence the Parsons family offered to prove
these theories, three documents, discovered in the Palestinian
Authority’s investigative file and that the parties and the
district court have thus far treated as admissible, are central to
this case. The first document (quoted above) is Qarmout’s
statement to Palestinian Authority interrogators in which
Qarmout admits that he prepared to plant a bomb on
Salahadeen Road in approximately the same location as the
bomb that killed Parsons. In that statement, Qarmout also
describes the three bombs he possessed in the month prior to
this attack. The second piece of evidence (also referenced
above) is the FBI’s forensic report. Lastly, the family relied
on a two-page memo having an unidentified author addressed
to the “Director General of the Preventive Security Service,”
the significance of which the parties forcefully debate. In a
section titled “Conclusion and personal interpretation of what
happened according to the information in my possession,” the
6
memo includes several statements about the role Palestinian
Authority employees played in the bombing including:
• “The explosive device was planted 20 meters
away from the National Security checkpoint, a
fact that indicates that those present in front of
the checkpoint that day have previous
knowledge of the presence of the device.”
• “[A]fter information of the arrival of US
embassy staff was leaked, either by the
National Security personnel at the checkpoint
or by those who were accompanying the
convoy, the person responsible for the
explosion detonated the device.”
The memo also includes several observations about the bomb,
see supra at 4, as well as two statements about when the
device was prepared and buried:
• “After examining the material used, we learned
it had been prepared more than twenty days
earlier and that a substantial portion of the
nitric acid had been lost, separated from the
urea, and reacted with the iron in the outer
casing.”
• “As we mentioned above, the device was
present for 20 days at least . . . .”
In addition, the Parsons family claimed they could prove
that Amer Qarmout and/or the Popular Resistance
Committees directly carried out the attack. Moreover, the
family insisted that even if they were unable to identify the
7
actual bomber, they could nonetheless prevail so long as they
could show what role the Palestinian Authority had played.
The district court, focusing on the three items of
evidence, granted the Palestinian Authority’s motion for
summary judgment. The court first held that plaintiffs
advancing material support claims under the Anti-Terrorism
Act must identify “what terrorist organization or individual
carried out the attack.” Estate of Parsons v. Palestinian Auth.,
715 F. Supp. 2d 27, 31 (D.D.C. 2010). Concluding that no
reasonable juror could find, based on the family’s admissible
evidence, that Qarmout, the PRC, or any other specific
terrorist or terrorist organization was directly responsible for
the bomb, the court rejected the family’s material support
claim. Although agreeing that the family need not prove the
bombers’ identity for their conspiracy claim, the court
nonetheless rejected that claim as well, reasoning that the
admissible evidence linking the Palestinian Authority to the
attack was too speculative. The Parsons family now appeals.
Our review is de novo. See Jones v. Bernanke, 557 F.3d 670,
674 (D.C. Cir. 2009) (explaining that we review summary
judgment decisions de novo).
II.
The Parsons family brought their material support and
conspiracy claims under the civil liability provision of the
Anti-Terrorism Act of 1991, which gives United States
nationals killed or injured “by reason of an act of international
terrorism” (or their estates, survivors, or heirs) the right to
bring a civil lawsuit in federal court. 18 U.S.C. § 2333. The
Act defines “international terrorism” as activities that, among
other things not relevant to this appeal, “involve violent acts
or acts dangerous to human life that are a violation of the
criminal laws of the United States or of any State, or that
would be a criminal violation if committed within the
8
jurisdiction of the United States or of any State.” Id.
§ 2331(1)(A). In other words, to prevail, a plaintiff must
prove the defendant would have violated any one of a series
of predicate criminal laws had the defendant acted within the
jurisdiction of the United States. Here, the Parsons family
alleges that the Palestinian Authority violated two federal
criminal statutes: 18 U.S.C. § 2339A, which makes it a crime
to “provide[] material support or resources . . . knowing or
intending that they are to be used in preparation for, or in
carrying out, a violation of” specific violent crimes, including
18 U.S.C. § 2332, which prohibits the killing of a United
States national outside the United States; and 18 U.S.C.
§ 2332(b), which makes it a crime to conspire to kill a United
States national outside the United States. The family’s Anti-
Terrorism Act claims thus turn on whether they can prove the
elements of either section 2339A (the material support claim)
or section 2332(b) (the conspiracy claim). In this opinion, we
consider the material support claim and announce our
judgment with respect to the conspiracy claim.
Material Support
The family first disputes the district court’s interpretation
of section 2339A as requiring them to identify the actual
bomber. The family may prevail, they claim, so long as they
show that the Palestinian Authority provided material support
to whoever directly carried out the attack. On this point, the
Palestinian Authority never directly challenges the family’s
statutory analysis, and for good reason. As the family
correctly observes, “[t]he emphasis in 18 U.S.C. § 2339A is
upon the material support provider—‘whoever provides
material support or resources’—not the recipient . . . .”
Appellants’ Br. 18.
That said, the family’s theory that Amer Qarmout planted
and detonated the bomb and that Palestinian Authority
9
employees gave him material support to that end, would, if
proven, at least be sufficient to sustain their material support
claim. Accordingly, we first consider whether a reasonable
juror could so conclude, starting with the question of whether
the family’s evidence that Qarmout planted and detonated the
bomb is sufficient to survive summary judgment.
Evaluating whether evidence offered at summary
judgment is sufficient to send a case to the jury is as much art
as science. Under Federal Rule of Civil Procedure 56, the
court must grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). But what makes for a “genuine” factual
dispute? The Supreme Court answered that question in
Anderson v. Liberty Lobby, Inc., explaining that the “mere
existence of a scintilla of evidence . . . will be insufficient” to
defeat summary judgment. 477 U.S. 242, 252 (1986).
Applying that standard requires us to examine both the
“caliber” and the “quantity” of the family’s evidence “through
the prism of the substantive evidentiary burden,”—for these
claims, the preponderance of the evidence standard. Id. at
254. That said, Liberty Lobby also warns against
“denigrat[ing] the role of the jury.” Id. at 255. To that end, the
Supreme Court emphasized, “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge . . . . The evidence of the non-movant is to be believed,
and all justifiable inferences are to be drawn in his favor.” Id.
We believe that the Parsons family’s evidence is
sufficient to meet this burden with respect to whether
Qarmout planted and detonated the bomb. Qarmout himself
admitted that two or three days prior to the attack, he prepared
to plant a bomb in the approximate location of the bomb that
10
killed Parsons. Qarmout also said that around the time of the
killing he possessed a bomb that weighed 30 to 35 kilograms,
employed urea as the explosive, and used cable detonators.
The bomb described by the FBI and the Palestinian
Authority’s analyses largely matches that profile. Both
describe a bomb employing urea nitrate as the explosive
material, and the Authority analysis reports that the bomb
weighed 30 to 40 kilograms and used cable detonators.
Moreover, the memo in the Palestinian Authority’s
investigative file concludes that “the structure of this device is
the same structure used by the Popular Resistance
Committees”—the very same terrorist organization of which
Qarmout was a leader.
The district court took note of most of this evidence,
acknowledging that “[e]vidence that someone prepared to do
something [i.e., that Qarmout prepared to plant a bomb] is of
course relevant to the question of whether the person actually
did it,” Estate of Parsons, 715 F. Supp. 2d at 32, that the
memo’s conclusion linking the bomb to the Popular
Resistance Committees “is essentially of a factual nature and
does have some relevance, as it tends to show a pattern or
practice by the PRC,” id., and that “[t]here is also evidence
that Qarmout is a PRC member, so it may be sensible to
consider the evidence related to Qarmout and the PRC
together,” id. at 33 n.4. Even so, the district court found this
evidence insufficient. Qarmout’s admissions were not enough
“in light of his denial of actually orchestrating the bombing.”
Id. at 32. Moreover, “[t]here is at least some indication that
the bomb had been present for 20 days prior to the explosion
. . . contrary to Qarmout’s account” that he was preparing to
plant a bomb only two or three days prior to the attack. Id. at
32 n.2. As for the Palestinian Authority memo, because it “is
undated and anonymous, its weight is minimal.” Id. at 32.
And in any event, “the bare fact that the bomb used resembles
11
PRC bombs of the past adds so little weight to the Qarmout
evidence that the evidence remains insufficient to establish
the identity of the bomber.” Id. at 33 n.4.
Supplementing the district court’s analysis, the
Palestinian Authority argues that in light of Qarmout’s history
of targeting the Israeli military “[t]here is no evidence that
Qarmout would have targeted a U.S. diplomatic convoy.”
Appellees’ Br. 37. At oral argument, the Authority also
pointed to Qarmout’s statement that he intended to plant his
12 kilogram bomb, not the 30 to 35 kilogram one. Recording
of Oral Arg. 17:54–18:57.
Although these evidentiary criticisms certainly have
force, they are, given the teachings of Liberty Lobby, more
properly directed to the jury. In our view, a reasonable juror
could conclude that Qarmout never planted a bomb; that the
actual bomb had been in the ground for twenty days, long
before Qarmout began digging his hole; that Qarmout planted
a different bomb; or even that he planted the bomb to target
Israelis but never detonated it. A reasonable juror, however,
could also believe Qarmout’s incriminating statements but
disbelieve his exculpatory ones, and thus conclude that he lied
about calling off the bombing. Likewise, a reasonable juror
could find that Qarmout planned to and did plant the 30 to 35
kilogram bomb that had been in his possession, as opposed to
the 12 kilogram bomb referred to in his statement. And it
would hardly be unreasonable for a juror to conclude that the
reference in the Palestinian Authority memo to the bomb
having been in the ground for twenty days was a misstatement
and that in fact the memo’s author meant to write only that the
bomb had been prepared, but not necessarily planted, twenty
days earlier. After all, the memo first says the bomb “had
been prepared more than twenty days earlier,” meaning that
its later statement—“as we mentioned above, the device was
12
present for 20 days at least…”—could be read as only cross-
referencing that earlier statement. Sorting out these
contradictions, deciding how much weight to give evidence
that supports or undermines the family’s case, and evaluating
how much credibility to assign Qarmout’s incriminating
versus exculpatory statements are prototypical jury functions
that courts may not commandeer. Liberty Lobby, 477 U.S. at
255. We therefore conclude that the Parsons family has
demonstrated the existence of a genuine dispute of material
fact as to whether Qarmout was the bomber.
The Authority next disputes on both evidentiary and legal
grounds whether the family can show that the Palestinian
Authority provided Qarmout with material support. As for its
evidentiary objection, the Authority questions any assertion
that the National Security personnel at the checkpoint
complied with Qarmout’s request to “turn their attention”
away from the planting of a bomb. It points out not only that
Qarmout’s statement makes no mention of whether and how
the guards responded, but also that Qarmout describes only a
conversation while he was digging a hole, not during the more
serious activity of planting a bomb. Moreover, relying on
another passage in Qarmout’s statement in which he describes
how personnel at a different National Security checkpoint
thwarted one of Qarmout’s previous bomb-planting missions,
the Authority argues that the personnel at this checkpoint
would have stopped Qarmout from planting a bomb.
Appellees’ Br. 38.
Once again, such evidentiary arguments are properly
addressed to the jury, not to the court. Recall that at summary
judgment the non-moving party is entitled to all “justifiable
inferences” in its favor. Liberty Lobby, Inc., 477 U.S. at 255.
Here, a reasonable juror could justifiably infer from
Qarmout’s statement and from the fact that the checkpoint
13
was only 20 meters from the bomb site that in response to
Qarmout’s request, the Palestinian Security forces stationed
there either expressly, or implicitly through their actions,
agreed to and did “turn their attention” from Qarmout’s bomb
planting activities.
The Authority accuses the family of failing to “parse the
language of the material support statute” or to “cite any legal
authority” establishing that complying with Qarmout’s
request to look the other way while he planted a bomb,
constituted material support within the meaning of section
2339A. Appellees’ Br. 43. The family responds that the
security forces’ conduct falls under two categories listed in
section 2339A(b)(1)’s definition of “material support or
resources”—namely, “service” and “personnel.” 18 U.S.C.
§ 2339A(b)(1).
We begin with “service.” Although section 2339A
nowhere defines that term, the Supreme Court provided a
definition just last year in Holder v. Humanitarian Law
Project, 130 S. Ct. 2705 (2010), a case involving a closely
related material support statute, section 2339B, that outlaws
“knowingly provid[ing] material support or resources to a
foreign terrorist organization.” 18 U.S.C. § 2339B(a)(1).
There, the Court explained that “service” “refers to concerted
activity” (as opposed to “independent activity”) and carries its
“ordinary meaning”—i.e., “ ‘the performance of work
commanded or paid for by another: a servant’s duty:
attendance on a superior’; or ‘an act done for the benefit or at
the command of another.’ ” Humanitarian Law Project, 130
S. Ct. at 2721–22 (quoting Webster’s Third New International
Dictionary 2075 (1993)). Although the Court defined that
term in the context of a different statute than the one we deal
with here, we generally presume, absent some indication to
the contrary, that Congress intends identical terms to have
14
identical meanings in related provisions, and no such
indication exists here. See Comm’r v. Lundy, 516 U.S. 235,
249–50 (1996). Moreover, defining “service” differently in
sections 2339A and 2339B seems particularly inappropriate
given that the latter provision expressly borrows its definition
of “material support or resources,” including “service,” from
the former. See 18 U.S.C. § 2339B(g)(4). Indeed, when
discussing “service” in Humanitarian Law Project, the Court
cites not only to section 2339B, but also to section 2339A’s
material support definition. Humanitarian Law Project, 130
S. Ct. at 2721–22 (citing 18 U.S.C. § 2339A(b)(1)).
Assuming, as we must at this stage of the litigation, that
the checkpoint personnel acted as the Parsons family claims,
we think the security forces’ conduct falls comfortably within
Humanitarian Law Project’s definition of “service.” As
security personnel assigned to a checkpoint, they were
presumably responsible for preventing terrorists from planting
and detonating bombs nearby. Moreover, they allegedly acted
in response to Qarmout’s request. In effect, then, at a
terrorist’s behest, these security officers agreed to and did
affirmatively remove the threat that local law enforcement
officers would themselves interfere with the terrorist’s efforts
to plant a bomb—actions functionally the same as distracting
a beat-cop so that someone else can safely break the law
without police intrusion. Because that is surely an act done in
concert with and for the benefit of a terrorist, it constitutes
providing a “service” and therefore material support within
the meaning of section 2339A.
Given this conclusion, we need not address the trickier
question of whether the security forces’ alleged conduct also
constitutes providing “personnel.” We say trickier because we
are at least unsure whether that conduct qualifies as providing
“personnel” as section 2339B defines that term and because
15
although some courts have concluded that “personnel” has a
different and broader meaning in section 2339A, at least one
of those courts has also acknowledged the existence of strong
arguments to the contrary. See United States v. Abu-Jihaad,
600 F. Supp. 2d 362, 399–400 (D. Conn. 2009) (concluding
that one can provide “personnel” for the purposes of section
2339A so long as there is some form of coordination, joint
action, or shared understanding between the personnel
provider and the terrorist but acknowledging arguments for
applying section 2339B’s narrower definition, which
expressly requires working, or providing others to work,
under a terrorist’s “direction or control”); see also United
States v. Abdi, 498 F. Supp. 2d 1048, 1057–58 (S.D. Ohio
2007). We, however, shall leave resolution of that issue for
another day.
In sum, we conclude that a reasonable juror could find on
the basis of the family’s evidence that Qarmout planted the
bomb that killed Parsons and that Palestinian Security forces
at the nearby security checkpoint complied with Qarmout’s
request not to interfere with his effort to plant a bomb.
Because such acts qualify as providing material support under
section 2339A, we reverse the district court’s grant of
summary judgment to the Palestinian Authority on the
family’s material support claim. Having reached this
conclusion, we have no need to consider the Parsons family’s
other evidentiary theories with respect to their material
support claim. We note, however, that because the panel is
divided on the issue, we have reached no binding decision
about whether the Parsons family has shown a genuine
dispute of material fact as to the scienter element of their
material support claim. See 18 U.S.C. § 2339A (criminalizing
the provision of “material support or resources . . . knowing or
intending that they are to be used in preparation for, or in
carrying out, a violation of” specific violent crimes, including
16
18 U.S.C. § 2332, which prohibits the killing of a United
States national outside the United States (emphasis added));
compare Opinion of Judge Henderson 1–10 (“Henderson
Op.”) (concluding that the Parsons family has failed to satisfy
the scienter element), with Opinion of Judge Brown 1–8
(“Brown Op.”) (concluding that the Parsons family has
demonstrated a genuine dispute of material fact as to the
scienter element), with Opinion of Judge Tatel 10–12 (“Tatel
Op.”) (treating as forfeited any argument that the Parsons
family has failed to satisfy the scienter element).
Conspiracy
We affirm the district court’s grant of summary judgment
as to the family’s conspiracy claim. See Henderson Op. at 1
n.1, 11; Tatel Op. at 1–10. But see Brown Op. at 8–21.
III.
Finally, the Parsons family argues in the alternative for
additional discovery, a request the district court denied.
Although we find no abuse of discretion in that decision with
respect to the family’s conspiracy claim, see Dunning v.
Quander, 508 F.3d 8, 9 (D.C. Cir. 2007) (per curium), the
district court may well view the need for additional discovery
on the material support claim differently in light of this
opinion. We therefore leave this issue to the district court to
consider in the first instance on remand.
So ordered.
KAREN LE CRAFT HENDERSON , Circuit Judge, concurring in part
and dissenting in part:
The Anti-Terrorism Act (ATA or Act) authorizes a United
States national (or his estate, survivors or heirs) injured “by
reason of an act of international terrorism” to sue in federal
court for money damages. 18 U.S.C. § 2333(a). The Act
defines “international terrorism” as activities that, as relevant
here, “involve violent acts or acts dangerous to human life that
are a violation of the criminal laws of the United States or of any
State, or that would be a criminal violation if committed within
the jurisdiction of the United States or of any State.” 18 U.S.C.
§ 2331(1)(A). To prevail, therefore, the plaintiffs (Parsons
family) must show that defendant Palestinian Authority (PA),
had it acted within the jurisdiction of the United States or of any
State, would have violated a criminal law of the United States or
of the State. On appeal, the Parsons family alleges two such
violations: (1) the PA provided material support for the killing
of a U.S. national in violation of 18 U.S.C. § 2339A and (2) the
PA conspired to kill a U.S. national in violation of 18 U.S.C.
§ 2332(b). I would affirm the district court on the alternative
ground that the Parsons family has failed to establish the scienter
requirement of sections 2339A and 2332(b). Accordingly, I
respectfully dissent in part.1
I take no exception to the majority opinion’s explanation of
the underlying facts. My disagreement is legal, not factual.
Section 2339A criminalizes the provision of “material support
or resources . . . knowing or intending that they are to be used in
preparation for, or in carrying out, a violation of” certain
criminal statutes. 18 U.S.C. § 2339A(a) (emphasis added). One
criminal statute—18 U.S.C. § 2332—prohibits the killing of a
U.S. national outside the United States. Section 2339A makes
clear that providing material support or resources alone is not
1
I join the judgment affirming the summary judgment grant to
defendant Palestinian Authority on the Parsons family’s conspiracy
claim.
2
sufficient to constitute a violation. The criminal defendant must
provide material support or resources “knowing or intending”
that the resources “are to be used in preparation for, or in
carrying out,” the underlying crime—here, the killing of a U.S.
national outside the United States. 18 U.S.C. § 2339A(a); see
also United States v. Stewart, 590 F.3d 93, 113 (2d Cir. 2009)
(“Section 2339A . . . does not penalize the provision of material
support without regard to what the support is for. [It] requires
instead that the defendant provide support or resources with the
knowledge or intent that such resources be used to commit
specific violent crimes.” (emphasis in original)); id. at 113 n.18
(“Section 2339A criminalizes the provision of material support
knowing or intending that such support is used to aid crimes of
terrorism. Therefore, the mental state in section 2339A extends
both to the support itself, and to the underlying purposes for
which the support is given.” (emphasis in original) (internal
citation omitted)). For a criminal violation of section 2339A,
then, specific intent is required. See Humanitarian Law Project
v. Mukasey, 552 F.3d 916, 927 (9th Cir. 2009) (section 2339A
requires defendant to act with specific intent), aff’d in part &
rev’d in part on other ground sub nom. Holder v. Humanitarian
Law Project, 130 S. Ct. 2705 (2010).
The knowledge required to violate section 2339A in the
context of the ATA’s civil liability provision, 18 U.S.C.
§ 2333(a), has been subject to debate. The Seventh Circuit,
sitting en banc, held that criminal recklessness suffices. Boim
v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 693 (7th
Cir. 2008) (en banc). The defendants in Boim were accused “of
having provided financial support to Hamas,” which
organization killed David Boim, a U.S. national living in Israel.
Id. at 687-88. The court compared criminal
recklessness—which “ ‘generally permits a finding of
recklessness only when a person disregards a risk of harm of
which he is aware’ ”—to civil recklessness—which “sometimes
connotes merely gross negligence and at other times requires
3
only that the defendant have acted in the face of an unreasonable
risk that he should have been aware of even if he wasn’t”—and
concluded that criminal, not civil, recklessness is required to
violate sections 2339A and 2332, as incorporated into section
2333(a). Id. at 694 (quoting Farmer v. Brennan, 511 U.S. 825,
837 (1994)); id. at 693 (“[I]t would not be enough to impose
liability on a donor for violating section 2333, even if there were
no state-of-mind requirements in sections 2339A and 2332, that
the average person or a reasonable person would realize that the
organization he was supporting was a terrorist organization, if
the actual defendant did not realize it.”). By way of example,
the court noted that “giv[ing] a small child a loaded gun would
be a case of criminal recklessness” because “the giver would
know he was doing something extremely dangerous and without
justification.” Id. at 693 (emphasis in original). Similarly, the
court explained,
[a] knowing donor to Hamas—that is, a donor who
knew the aims and activities of the organization—
would know that Hamas was gunning for Israelis . . . ,
that Americans are frequent visitors to and sojourners
in Israel, that many U.S. citizens live in Israel . . . and
that donations to Hamas, by augmenting Hamas’s
resources, would enable Hamas to kill or wound, or try
to kill, or conspire to kill more people in Israel.
Id. at 693-94. In other words, the court concluded that
knowingly donating money to Hamas is a criminally reckless act
sufficient to violate sections 2333(a), 2339A and 2332. Three
dissenting judges found the court’s reasoning “awfully vague”
and accused the court of “slid[ing] over the statutory
requirement . . . that the entity providing material assistance
must know that the donee plans to commit terrorist acts against
U.S. citizens.” Id. at 725 (Wood, J., dissenting); see also
Abecassis v. Wyatt, 704 F. Supp. 2d 623, 664-65 (S.D. Tex.
2010) (“[I]t is not enough [that provider of material support or
4
resources] know the character of the ultimate [recipient of the
support or resources]. The defendant must know (or intend) that
its money is going to a group engaged in terrorist acts or is being
used to support terrorist acts. Because civil liability under the
ATA is restricted to American victims, the defendant must also
know (or intend) that the terrorism or terrorist group it is
supporting targets Americans.”); cf. United States v. Stewart,
590 F.3d 93, 113 & n.18 (2d Cir. 2009).
I express no opinion on the Seventh Circuit’s application of
criminal recklessness to establish civil liability under the ATA
for a violation of section 2339A because the Parsons family
failed to establish even criminal recklessness. Significantly, the
Boim court’s determination that the donors acted recklessly
relied on “State Department data that in 1999 there were about
184,000 American citizens living in Israel, accounting for about
3.1 percent of the country’s population.” 549 F.3d at 694. The
record here contains no data suggesting a similar American
presence in Gaza. Instead, the record indicates that Israelis, not
Americans, were likely the intended targets of the bomb. See
Decl. ¶ 19 (“[A] number of the individuals arrested and
interrogated” by the PA after the explosion “admitted to
possessing and planting explosive charges in the past, targeted
at Israeli military incursions into Gaza.” (emphasis added)).2
That Israeli tanks arrived shortly after the explosion to secure
the area reinforces the inference. See id. ¶ 10. The only
evidence that links the PA’s alleged provision of material
support to the killing of a U.S. national is the “[c]onclusion and
personal interpretation” of the anonymous author of an undated
two-page memorandum to the “Director General of the
2
was
Gaza” at the time
of the explosion. Decl. ¶ 7. In that role he
into the event. Id.
¶ 8.
5
Preventive Security Service” that PA personnel—either those at
the checkpoint or those in the lead car of the convoy—“leaked”
“information of the arrival of US Embassy staff” to whoever
detonated the bomb.3 Sealed App. 305. To accept the
conclusion that PA personnel notified the bomber of the arrival
of the U.S. convoy “would require piling inference (about the
reliability and knowledgability of the statement’s author) upon
inference (about when the statement was written) upon inference
(about the statement’s evidentiary basis)[]akin more to
speculation than to reasonable fact-finding” and “ ‘[t]he
possibility that a jury might speculate in the plaintiff’s favor
. . . is simply’ insufficient to defeat summary judgment.”4
Concurring Opinion of Judge Tatel (Tatel Op.) at 4 (quoting
Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 631 (D.C. Cir.
2010)).
Judge Brown contends that the two-page memorandum is
an “official government record” that is “entitled to a
3
Judge Brown urges that a statement by a former head of the PSS
that Palestinian security forces aided Hamas and martyred themselves
during the Second Intifada “tends to support [the] conclusion” that PA
personnel at the security checkpoint at least disregarded the risk that
their conduct would aid in the killing of Americans. Opinion of Judge
Brown at 7. The PSS official’s statement is an English translation
found on the website of Palestinian Media Watch, an Israeli research
institute, of an excerpted news clip from 2007. Assuming arguendo
the website accurately translated the statement, the statement does not
suggest that PA personnel would have known the bomb would target
Americans.
4
I find the Parsons family’s claim speculative for another reason.
For PA personnel at the checkpoint—and even more so, in the
convoy—to have “tipped” the bomber to the U.S. embassy staff’s
arrival means that those personnel had to have calibrated with pinpoint
accuracy that the explosion would not affect them—otherwise, they
risked their own lives as well.
6
presumption of regularity.” Opinion of Judge Brown (Brown
Op.) at 5 (citing PNC Fin. Servs. Grp., Inc. v. Comm’r, 503 F.3d
119, 123 (D.C. Cir. 2007)). The government record in PNC was
an official tax receipt of the Brazilian government marking the
payment of a specific tax. PNC, 503 F.3d at 123. The relevant
portion of the memorandum, in contrast, does not purport to
memorialize the occurrence of a specific event but to offer a
“[c]onclusion and personal interpretation.” Sealed App. 305.
Because the document is unsigned and undated we cannot
reasonably assume it represents the PA’s official position. We
can assume only that it represents what it purports to
represent—the “[c]onclusion and personal interpretation” of its
author.5 Id. (emphasis added).
5
I disagree with Judge Brown that the Declaration supports
inferences favorable to the Parsons family regarding the reliability and
knowledgability of the memorandum’s author. See Brown Op. at 4-5.
The relevant portion of the Declaration states:
The PSS kept an investigative file documenting the
investigation, interviews, interrogations and the forensic
analysis provided by the FBI. Copies of those files were
provided to counsel for the PA and PLO in this matter, and
I understand copies were then provided to Plaintiffs’
counsel. I was responsible for collecting, assembling, and
producing the investigative file produced in this matter and
for verifying that the records produced are authentic copies
of records kept in the course of the investigation into the
bombing.
Decl. ¶¶ 17-18. statement that he was responsible for
verifying that the records were “authentic copies” does not mean that
he also verified the substance of each record. It means only that he
verified that the records provided to counsel for the PA and PLO were
accurate reproductions of records held by the PSS— without
necessarily endorsing any statements or conclusions in those records.
After the above-quoted passage, moreover, the Declaration
discusses—in several paragraphs that all begin “I have reviewed the
7
The other precedent Judge Brown relies on applied the
presumption of regularity to the actions of American
governmental officials—not foreign officials. See Musengo v.
White, 286 F.3d 535 (D.C. Cir. 2002) (Army officers); Am.
Fed’n of Gov’t Emps. v. Reagan, 870 F.2d 723 (D.C. Cir. 1989)
(President of the United States); S. Pac. Commc’ns Co. v. AT&T,
740 F.2d 980, 994-95 (D.C. Cir. 1984) (judge), cert. denied, 470
U.S. 1005 (1985); McSurely v. McClellan, 697 F.2d 309, 323-24
(D.C. Cir. 1982) (same), cert. denied, 474 U.S. 1005 (1985);
Jones v. United States, 342 F.2d 863, 884 (D.C. Cir. 1964) (en
banc) (grand jury). These cases, moreover, applied the
presumption to establish that the officials followed the
appropriate procedures when performing their official duties,
see, e.g., Am. Fed’n of Gov’t Emps., 870 F.2d at 727-28, not to
lend credence to their “conclusions, inferences, and subjective
judgments,” see Brown Op. at 5. That courts presume, absent
clear evidence to the contrary, duly elected or appointed
American governmental officials act correctly and in
compliance with applicable law does not suggest that a similar
presumption attaches—or should attach—to the admittedly
personal interpretation of an anonymous investigator in one of
the most chaotic and irregular regions of the world.
The memorandum does not explain, moreover, why it
concludes that PA personnel “leaked” news of the U.S. convoy’s
arrival. The relevant portion of the memorandum states in full:
investigative file . . . .”—the evidence contained in Qarmout’s
statement, a “true and correct copy” of which is attached to the
Declaration as exhibit 1. See id. ¶¶ 19-22. In contrast to the extensive
discussion of Qarmout’s statement, the Declaration does not mention
the memorandum. Nor is the memorandum attached as an exhibit to
the Declaration, as Qarmout’s statement is. Accordingly, I find
nothing in the Declaration that supports the reliability or
authoritativeness of the memorandum.
8
As we mentioned above, the device was present for 20
days at least, which means that the device was planted
either after the problem with Ismail Hameed or it was
planted for one of the vehicles of the Israeli occupation
army. However, after information of the arrival of US
Embassy staff was leaked, either by the National
Security personnel at the checkpoint or by those who
were accompanying the convoy, the person responsible
for the explosion detonated the device.
Id. The memorandum contains no factual basis for its
conclusion that “National Security personnel” leaked news
about the U.S. convoy. To conclude that the memorandum’s
author “inferred” the conclusion “from the bomb’s proximity to
the checkpoint” is simply to speculate. Brown Op. at 6. The
inference that personnel at the checkpoint knew about the bomb
because of its proximity to the checkpoint, even if reasonable,
says nothing about the further inference that personnel at the
checkpoint leaked news of the U.S. convoy’s arrival. The two
inferences are unrelated. The former is supported by facts—the
proximity of the bomb to the checkpoint—while the latter is not.
Because the Parsons family offers no admissible evidence
to demonstrate that the PA intended or knew (or even recklessly
disregarded whether) its conduct—assuming arguendo it
provided material support or resources to whoever planted and
detonated the bomb—would aid in the killing of a U.S. national,
the PA is entitled to summary judgment on the Parsons family’s
section 2339A claim.
Judge Tatel would avoid section 2339A’s scienter
requirement by maintaining that the PA did not “identif[y]
section 2339A’s state of mind requirement as a problem for the
specific theory” accepted by the majority—“namely, that the
personnel posted at the checkpoint agreed to Qarmout’s request
not to interfere with his efforts to plant a bomb.” Tatel Op. at
10-11 (emphasis in original); see Brown Op. at 8. To the
9
contrary, the PA repeatedly argues that the Parsons family failed
to satisfy section 2339A’s scienter requirement. See Appellees’
Br. 33-34 (The Parsons family “offered no facts that could be
presented in admissible form that the PA provided any kind of
material support to the PRC, let alone that the PA provided such
support ‘knowing or intending’ that it was ‘to be used in
preparation for, or in carrying out,’ the killing of a U.S. national,
as the statute requires.” (emphasis in original) (quoting 18
U.S.C. § 2339A)); id. at 41-42 (“Even if someone in the PA had
given Qarmout a weapon, there is no evidence that they did so
‘knowing or intending that they are to be used’ in carrying out
the killing of a U.S. national or other terrorist act, as required by
18 U.S.C. § 2339A . . . .”); id. at 37 (“There is no evidence that
Qarmout would have targeted a U.S. diplomatic convoy.”); id.
at 43 (“Plaintiffs . . . do not explain how a failure to adequately
guard a security checkpoint and prevent the planting of an
explosive charge meets the definition of ‘material support’ under
the statute. See 18 U.S.C. § 2339A(b) (which requires an
affirmative act of support engaged in with the requisite
knowledge and intent, rather than an act of omission or
negligence).” (emphasis added)). Nor is it “unfair to the Parsons
family for us to consider whether the evidence creates a genuine
dispute of material fact as to” a necessary element of their
claims. See Tatel Op. at 11. The PA raised the lack of
admissible evidence meeting section 2339A’s scienter
requirement both in its brief in this court and in its motion for
summary judgment in district court. See Appellees’ Br. 33-34,
37, 41-43; Mem. of Points & Auths. in Support of Defs.’ Mot.
for Summ. J. at 14, Estate of Parsons v. Palestinian Auth., 715
F. Supp. 2d 27 (D.D.C. 2010) (No. 07-cv-01847). The Parsons
family thus has had ample opportunity to respond to the PA’s
argument. See Skinner v. U.S. Dep’t of Justice, 584 F.3d 1093,
1101 (D.C. Cir. 2009) (“no unfairness” in affirming on
alternative ground where issue was raised before district court
with full opportunity to respond), cert. denied, 131 S. Ct. 72
10
(2010); Washburn v. Lavoie, 437 F.3d 84, 89 (D.C. Cir. 2006);
see also Wash.-Baltimore Newspaper Guild, Local 35 v. Wash.
Post, 959 F.2d 288, 292 n.3 (D.C. Cir. 1992) (“We have
discretion to uphold a grant of summary judgment under a legal
theory different from that applied by the district court, resting
the affirmance on any ground that finds support in the record,
particularly one raised before the district court.” (emphasis in
original)). Judge Tatel unrealistically parses the PA’s defense
into discrete and seemingly unrelated arguments.6 See Tatel Op.
at 10-11; cf. Brown Op. at 1-2 n.1. “[S]ummary judgment is
appropriate if the nonmoving party fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of
proof at trial.” Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir.
2011) (internal quotation marks omitted). The Parsons family
failed to make a showing sufficient to establish an essential
element of their claim—that the PA, assuming it provided
material support, acted with knowledge or intent that its support
would aid the killing of a U.S. national. The district court
therefore properly granted summary judgment to the PA.
6
Even under his compartmentalized approach, moreover, Judge
Tatel concedes that the PA raised section 2339A’s scienter
requirement as a defense to the Parsons family’s “Qarmout theory.”
Tatel Op. at 11. He nonetheless contends that the PA’s claim that
“[t]here is no evidence that Qarmout would have targeted a U.S.
diplomatic convoy,” Appellees’ Br. 37—which claim immediately
follows the PA’s explanation that Qarmout was known to attack Israeli
military targets—“deals with whether Qarmout committed this attack,
not with the state of mind of the personnel at the checkpoint.” Tatel
Op. at 11. If, however, the personnel at the checkpoint did not
believe—because there was no evidence to support the belief—that
Qarmout would target a U.S. convoy, any support they may have
provided Qarmout would not have been given knowing or intending
(or recklessly disregarding whether) it would be used to kill a U.S.
national.
11
The PA is likewise entitled to summary judgment on the
Parsons family’s section 2332(b) conspiracy claim. Section
2332(b) makes it a crime to “attempt[] to kill, or engage[] in a
conspiracy to kill, a national of the United States” outside the
United States. 18 U.S.C. § 2332(b). “To prove a conspiracy
charge, the [evidence] must show that the defendant agreed to
engage in criminal activity and ‘knowingly participated in the
conspiracy’ with the intent to commit the offense . . . .” United
States v. Hemphill, 514 F.3d 1350, 1362 (D.C. Cir.) (quoting
United States v. Gatling, 96 F.3d 1511, 1518 (D.C. Cir. 1996)),
cert. denied, 129 S. Ct. 590 (2008); see also In re Terrorist
Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 113 (2d
Cir. 2008) (to establish existence of criminal conspiracy under
section 2332(b), evidence “must prove that the conspirators
agreed on the essence of the underlying illegal objective[s], and
the kind of criminal conduct . . . in fact contemplated.” (ellipsis
and alteration in original; internal quotation marks omitted)),
cert. denied, 129 S. Ct. 2778 (2009), 130 S. Ct. 1050 (2010).
Section 2332(b) thus requires that a violator knowingly conspire
to kill a U.S. national. As explained earlier, the Parsons family
has failed to show that the PA possessed the requisite knowledge
or intent to support the conspiracy claim.
For the foregoing reasons, I would affirm in toto the district
court’s grant of summary judgment in favor of the PA and,
accordingly, dissent from the reversal of summary judgment on
the 18 U.S.C. § 2339A claim.
TATEL, Circuit Judge, concurring: I write separately to
explain my reasons for joining our affirmance of the district
court’s grant of summary judgment to the Palestinian
Authority as to the Parsons family’s conspiracy claim. I also
explain why I would decide neither the scienter issue my
colleagues debate, compare Opinion of Judge Henderson
(“Henderson Op.”), with Opinion of Judge Brown at 1–8
(“Brown Op.”), nor the vicarious liability issue that Judge
Brown reaches, see Brown Op. at 17–21.
I.
Although the parties appear to disagree about the exact
elements of an Anti-Terrorism Act civil conspiracy claim,
they agree, as do I, that the Parsons family must prove at least
the existence of an agreement between Palestinian Authority
employees and whoever planted the bomb. Compare In re
Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d
93, 114 (2d Cir. 2008) (listing among section 2332(b)’s
requirements that a defendant “. . . agree[] to the essence of
[the conspiracy’s] objectives” (emphasis added)), with United
States v. Hemphill, 514 F.3d 1350, 1362 (D.C. Cir. 2008)
(“To prove a conspiracy charge, the [evidence] must show
that the defendant agreed to engage in criminal activity . . . .”
(emphasis added)). The family offers two evidentiary theories
in support of its argument that a reasonable juror could find
such an agreement.
Before addressing those theories, however, I briefly
consider the family’s argument that we should take account of
two pieces of evidence the district court disregarded. First, the
district court ruled inadmissible a document from the website
archive of the Israeli Intelligence and Terrorism Information
Center purporting to summarize a “captured” Palestinian
Authority document allegedly describing plans to create a
nitric acid factory to support bomb production. According to
the district court, this document is inadmissible because
2
“[i]ntelligence reports that contain multiple levels of hearsay
are not admissible evidence.” Estate of Parsons v. Palestinian
Auth., 715 F. Supp. 2d 27, 34 (D.D.C. 2010). Given that the
document only summarizes the supposedly captured
Palestinian Authority document and neither quotes that
document nor attaches a copy of it, I see no abuse of
discretion in the district court’s decision. See Gen. Elec. Co.
v. Joiner, 522 U.S. 136, 143 (1999) (explaining that “[o]n a
motion for summary judgment . . . the question of
admissibility of expert testimony . . . is reviewable under the
abuse-of-discretion standard”). Accordingly, I too shall
disregard the document.
The family also relies on a video snippet of a 2007
interview purportedly with Muhammad Dahlan, head of the
Palestinian Preventive Security Services from 1999 until 2002
and Palestinian Minister of State Security from April until
September 2003, in which Dahlan said (according to a
translation on the Palestinian Media Watch website): “Forty
percent of the Martyrs in this Intifada belonged to the
Palestinian security forces. The Palestinian security forces
were those who protected and hid half of the Hamas [military]
leadership and of the Hamas military force during the
Intifada.” Palestinian Media Watch, http://www.palwatch.org/
main.aspx?fi=713&fld_id=713&doc_id=864 (last visited July
22, 2011). The Palestinian Authority describes this video as
“unauthenticated,” suggesting that the video would be
inadmissible at trial. Appellees’ Br. 34. But to defeat
summary judgment, a party need only produce evidence
“capable of being converted into admissible evidence,” Greer
v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (internal
quotation marks omitted), and the defect the Authority
identifies seems hardly irremediable. Accordingly, and
because the Authority offers no other inadmissibility
argument in this court, I shall consider the Dahlan video.
3
I turn, then, to the family’s two principal arguments for
preserving their conspiracy claim, both of which rely almost
exclusively on the undated and anonymous two-page memo
discovered in the Palestinian Authority’s investigative file.
Pointing to a single sentence in that memo, the family first
says they can prove that personnel at the checkpoint or
Palestinian Authority officials in the convoy’s lead car tipped
off the terrorist about the convoy’s movements. That sentence
states: “[A]fter information of the arrival of US embassy staff
was leaked, either by the National Security personnel at the
checkpoint or by those who were accompanying the convoy,
the person responsible for the explosion detonated the
device.” Because this sentence “is stated as a fact,” not as an
inference or a guess, the family argues that it must be
believed. Appellants’ Reply Br. 6 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986), for the proposition that
“the evidence of the non-movant is to be believed.”).
Moreover, the family contends that as the non-moving party
they are entitled to a series of supportive inferences: that the
memo was written by a qualified and high-ranking Palestinian
Authority investigator, that it was prepared at the conclusion
of the investigation, and that it was based on damning facts
uncovered during that investigation.
Notwithstanding the family’s valiant effort to build an
entire case out of this single sentence, I think it too slender a
reed to support the weight of the conspiracy claim. Applying
Liberty Lobby, I focus on both the “quantity” and the
“caliber” of the family’s evidence. 477 U.S. at 254. Other
than the single sentence from the memo, the only even
potentially admissible evidence on which the family relies is
(1) the entirely speculative suggestion that because
Palestinian Authority officials were in the convoy and at the
checkpoint they would have had the requisite opportunity to
leak; and (2) the equally speculative suggestion that because
4
the former head of the Palestinian Security forces bragged
that some among the many thousands of Palestinian Security
forces participated in the Second Intifada, those particular
forces at this particular checkpoint must have as well. As for
the sentence from the memo, it too is of extremely poor
“caliber.” Id. In particular, the sentence refers to no specific
facts on which the memo’s author based his conclusion. By
contrast, the sentence about the bomb resembling those used
in the past by the Popular Resistance Committees rests on
“[t]he lid of the device, the type of detonator, the cable used,
the poorly connected batteries, the type of explosive material,
[and] the outer casing of the device.” Moreover, the Parsons
family can show neither who wrote this memo nor at what
stage in the investigation it was written. Accepting their
tipster theory, therefore, would require piling inference (about
the reliability and knowledgability of the statement’s author)
upon inference (about when the statement was written) upon
inference (about the statement’s evidentiary basis)—akin
more to speculation than to reasonable fact-finding. And
“[t]he possibility that a jury might speculate in the plaintiff’s
favor . . . is simply” insufficient to defeat summary judgment.
Athridge v. Aetna Cas. & Sur. Co., 604 F.3d 625, 631 (D.C.
Cir. 2010) (ellipsis in original) (internal quotation marks
omitted). Nor does considering the memo in light of Dahlan’s
statement change this analysis, for that statement is cast at
such a high level of generality that it makes the family’s
theory about what happened in this particular instance only
infinitesimally more likely. But see Brown Op. 16–17.
Accordingly, the family’s tipster theory cannot save their
conspiracy claim.
The Parsons family offers a second theory to support
their conspiracy claim, namely, that the checkpoint security
forces helped the terrorist while he planted the bomb.
Significantly, however, the family never defends their
5
conspiracy claim by arguing, as they do with respect to their
material support claim, that Qarmout planted the bomb with
the help of those stationed at the checkpoint. Instead, the
family advances only the more generic evidentiary theory that
someone at sometime planted the bomb with some kind of
assistance from those security forces. In support, the family
relies principally on the fact that the checkpoint was only 20
meters from the bomb site, which to them means that
personnel posted there must have known about the bomb.
Seeking to demonstrate the reasonableness of that inference,
the family points to another sentence in the memo which,
employing identical reasoning, states, “The explosive device
was planted 20 meters away from the National Security
checkpoint, a fact that indicates that those present in front of
the checkpoint that day have previous knowledge of the
presence of the device.” But apparently recognizing that
simply knowing about a bomb or even failing to stop a bomb
from being planted does not make one a co-conspirator in a
terrorist attack, the family would have a jury further infer that
the security forces affirmatively helped place the bomb,
perhaps by complying with a request to look the other way.
Defending that second inferential leap, the family relies on
Qarmout’s statements, but only for the limited proposition
“that anyone that planted the bomb on [Salahadeen] Street . . .
must have obtained the cooperation of the [Palestinian
Authority] security checkpoint.” Appellants’ Br. 33. In
addition, the family once again suggests that a juror could
justifiably infer from Dahlan’s boast that some Palestinian
Security forces participated in some attacks during the Second
Intifada that personnel at this checkpoint were complicit in
this attack.
This second theory is just as dependent on incredibly
little and incredibly low quality evidence—and so just as
speculative—as the first. Not only would the family ask a jury
6
to make two quite substantial inferences—that the security
forces knew of the bomb and that they affirmatively helped
plant it—but, as the Palestinian Authority points out, they
would do so based on evidence that leaves a number of
important questions unanswered, such as “whether the
checkpoint was manned 24-hours a day” and “whether the
bomb could have been planted unseen at night.” Appellees’
Br. 44. Such a tower of inferences built atop a gap-filled
foundation is too unstable to stand. I thus agree with the
district court that the family’s generic theory about the help
personnel posted at the checkpoint must have provided in
planting the bomb is also inadequate to defeat summary
judgment.
Given that the Parsons family has failed to defend their
conspiracy claim with any evidentiary theory other than the
two just rejected, I would ordinarily end my analysis here. But
because we have already explained in the context of the
family’s material support claim that a reasonable juror could
find that “at a terrorist’s behest” the Palestinian Authority
personnel posted at the checkpoint “agreed to and did
affirmatively remove the threat that local law enforcement
officers would themselves interfere with the terrorist’s efforts
to plant a bomb,” Maj. Op. at 14 (emphasis added), one might
wonder (as does Judge Brown, see Brown Op. at 1, 8–17)
how the family could have failed to show a genuine dispute of
material fact as to the existence of an agreement in the context
of their conspiracy claim.
Although there is some tension between these two
analyses, responsibility for that tension belongs to the Parsons
family alone. In the district court, the family defended their
conspiracy claim first and foremost on the theory that the
Palestinian Authority “through their security personnel
conspired with a known member of the PRC [i.e., Qarmout]
7
to commit the terrorist act of planting [the] bomb” that killed
Parsons. Parsons’ Mem. in Opp’n to Def.’s Mot. for Summ. J.
16, Mar. 1, 2010, ECF No. 31. The district court, however,
found the family’s evidence insufficient to sustain that theory,
but held that only material support claims, not conspiracy
claims, require identifying who carried out the attack.
Apparently prompted by that decision, the Parsons family
decided to pursue their Qarmout theory on appeal only as an
alternative argument in case we agreed with the district court
that proving the bomber’s identity is statutorily required—and
thus only for their material support claim. Having made such
a choice, the family must accept its consequences. See Doe by
Fein v. District of Columbia, 93 F.3d 861, 875 n.14 (D.C. Cir.
1996) (per curiam) (finding forfeited an argument relied on by
the district court but not raised on appeal).
According to Judge Brown, however, the family
“properly [put Qarmout’s statement] before the court as to the
conspiracy claim, not just the material support claim.” Brown
Op. at 13. I disagree. The conspiracy section of the family’s
brief mentions the Qarmout evidence only in a single
sentence, while devoting three full pages to the two-page
memo discovered in the Palestinian Authority’s investigative
file. Appellant’s Br. 33–36. By contrast, the family spends six
pages of the material support section on the Qarmout and
Popular Resistance Committee evidence. Id. at 22–24, 26–29.
Moreover, in the conspiracy section, the family refers to the
Qarmout evidence only in support of “the . . . generic
evidentiary theory that someone at sometime planted the bomb
with some kind of assistance from th[e] security forces,”
supra at 5; the family never suggests that evidence describes
the specific conspiracy that is the basis for liability. Given the
family’s approach, it is hardly surprising that the Authority
never once mentions the Qarmout evidence in responding to
the family’s conspiracy claim arguments—not even to
8
incorporate arguments made earlier with respect to the
material support claim. Appellees’ Br. 45–50. Indeed, the
Authority expressly states its understanding that the evidence
on which the family relies to support the conspiracy claim
“consists of only the two-page memo.” Id. at 46 (emphasis
added). Of course, appellees sometimes miss appellants’
arguments, but when they do we can usually count on
appellants to point that out in their reply brief—something the
Parsons family never does. So, far from misconstruing the
family’s brief—and far from “ignor[ing]” any evidence,
Brown Op. at 8—my approach to the family’s conspiracy
claim simply abides by the basic “premise of our adversarial
system . . . that appellate courts do not sit as self-directed
boards of legal inquiry and research, but essentially as arbiters
of legal questions presented and argued by the parties before
them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir.
1983).
Judge Brown insists that “[o]ur forfeiture doctrine applies
to legal arguments, not facts.” Brown Op. at 9. Not true.
There is no such categorical distinction and Judge Brown has
not identified even a single forfeiture case saying otherwise.
Brown Op. 10. To the contrary, our district courts’ Local
Civil Rule 7(h) expressly authorizes courts to treat as forfeited
evidence—including record evidence—that the parties fail to
highlight at summary judgment. D.D.C. Local Civ. R. 7(h)(1)
(“[T]he court may assume that facts identified by the moving
party in its statement of material facts are admitted, unless
such a fact is controverted in the statement of genuine issues
filed in opposition to the motion,” which statement “shall
include references to the parts of the record relied on to
support the statement.”). The existence of a genuine dispute
of material fact, therefore, ordinarily turns not on a review of
the entire record, but rather on the “facts” and the portions of
the record each party specifically highlights. See Jackson v.
9
Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d
145, 154 (D.C. Cir. 1996) (rejecting the argument that “the
court could not properly decide summary judgment without
considering the entire record to determine the existence of
genuine issues of material fact” (internal quotation marks
omitted)). Likewise, we routinely refuse to consider evidence
relied on for the first time on appeal even if that evidence was
in the record before the district court. See, e.g., Potter v.
District of Columbia, 558 F.3d 542, 549–51 (D.C. Cir. 2009)
(applying to record evidence the “well settled” forfeiture
principle “that issues and legal theories not asserted at the
District Court level ordinarily will not be heard on appeal”
(internal quotation marks omitted)).
We apply forfeiture to unarticulated evidentiary theories
not only because “judges are not like pigs, hunting for truffles
buried in briefs or the record,” Id. at 553 (Williams, J.,
concurring) (internal quotations marks omitted); accord
Brown Op. at 11, but also because such a rule ensures fairness
to both parties. To deny a summary judgment motion based
on an evidentiary theory the nonmoving party never
developed would necessarily deprive the moving party of the
opportunity to poke holes in that theory. See Gardels v. CIA,
637 F.2d 770, 773–74 (D.C. Cir. 1980) (explaining that one of
the purposes of Local Civil Rule 7(h)’s predecessor was to
“direct[] . . . the opponent . . . to the parts of the record” at
issue so that “opponent . . . has the opportunity to respond”).
This concern for fairness would be ill-served if we regularly
decided appeals based on record evidence only passingly
mentioned in a footnote, or identified for the first time in a
reply brief or at oral argument. But see Brown Op. at 9, 11
(implying we do just that).
Fairness is implicated as well where, as here, the
nonmoving party develops an adequate evidentiary theory in
10
defense of one but not another claim—at least where the two
claims have different elements. After all, an argument useless
for attacking a theory in the context of one claim may be
devastating to that same theory in the context of the other
claim. It is hardly surprising then that in Vickers v. Powell, we
did exactly what I do here—namely, in reviewing a district
court’s summary judgment decision, we expressly declined to
consider relevant record evidence with respect to one of the
nonmovant’s claims because the nonmovant had relied on that
evidence only to defend a different claim. 493 F.3d 186, 196
(D.C. Cir. 2007) (declining to consider evidence of “various
discriminatory acts” to rebut an employer’s allegedly non-
discriminatory explanation for firing nonmovant in the
context of nonmovant’s retaliation claim even while
evaluating that evidence in the context of nonmovant’s hostile
work environment claim because nonmovant only advanced
that evidence in support of the latter claim).
II.
My colleagues debate whether “the Parsons family has
failed to establish the scienter requirement of” their two
claims. Henderson Op. at 1. Compare id. (genuine dispute of
material fact not shown for the scienter element), with Brown
Op. at 1–8 (disagreeing). I have no need to reach this issue
with respect to the Parsons family’s conspiracy claim
because, for the different reasons discussed above, I would
affirm the grant of summary judgment as to that claim. I
would also decline to address the issue as to the family’s
material support claim because in its brief to this court the
Palestinian Authority never identifies section 2339A’s state of
mind requirement as a problem for the specific theory we now
accept, namely, that the personnel posted at the checkpoint
agreed to Qarmout’s request not to interfere with his efforts to
plant a bomb. See United States v. Reeves, 586 F.3d 20, 26
11
(D.C. Cir. 2009) (arguments not made on appeal are
ordinarily forfeited).
According to Judge Henderson, the Authority did raise
this argument—indeed, “repeatedly.” Henderson Op. at 9. But
two of these “repeated[]” references appear in sections of the
Authority’s brief devoted to evidentiary theories other than
the Qarmout theory. See Appellees’ Br. 33–34 (PRC theory);
id. at 43 (the so-called proximity theory). Nor are Judge
Henderson’s two citations to the Authority’s Qarmout-based
section any more on point. The first—“[t]here is no evidence
that Qarmout would have targeted a U.S. diplomatic convoy,”
Appellee’s Br. 37—deals with whether Qarmout committed
this attack, not with the state of mind of the personnel at the
checkpoint. The second—“[e]ven if someone in the
[Palestinian Authority] had given Qarmout a weapon, there is
no evidence that they did so ‘knowing or intending that they
are to be used’ in carrying out the killing of a U.S. national or
other terrorist act . . . ,” Appellees’ Br. 41–42 (quoting 18
U.S.C. § 2339A(a))—clearly refers only to the theory that the
Authority provided Qarmout with weapons, rather than the
theory that the personnel posted at the checkpoint agreed to
Qarmout’s request not to interfere with his efforts to plant a
bomb. Because these references point to evidentiary theories
other than the Qarmout theory or to elements of the Qarmout
theory other than the state of mind element, they are hardly
adequate to put the Parsons family on notice of the specific
element of the specific evidentiary theory that Judge
Henderson now addresses. Under these circumstances, then, it
would be unfair to the Parsons family for us to consider
whether the evidence creates a genuine dispute of material
fact as to the security forces’ state of mind when allegedly
aiding Qarmout.
12
Moreover, even if the Authority had properly raised the
scienter issue, I would exercise our discretion not to reach it.
The district court never decided this issue and on appeal the
parties address it, at best, in passing, and at worst, not at all,
see supra at 10–11. As my colleagues’ debate well
demonstrates, the issue is both novel and complex. Under
these circumstances, I think it most “prudent to remand
the . . . issue[] to the district court for an initial evaluation.”
Int’l Union, United Auto., Aerospace & Agric. Implement
Workers of Am. v. Brock, 783 F.2d 237, 251 (D.C. Cir. 1986)
(noting that federal appellate courts have discretion to remand
“purely legal” issues unaddressed by the district court and
inadequately briefed on appeal).
Judge Brown also addresses the Authority’s contention
that it may not be held vicariously liable under the Anti-
Terrorism Act for the acts its checkpoint employees allegedly
took to aid Qarmout. Brown Op. at 17–21. Again, I have no
need to reach this issue as to the family’s conspiracy claim.
See supra at 1–10. As for the material support claim, although
the Authority raised its vicarious liability theory against that
claim at oral argument, it never did so in its brief—an
oversight I would not overlook. Recording of Oral Arg. at
15:08–15:25, 16:43–17:55; see also Ark Las Vegas Rest.
Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003)
(arguments raised for the first time at oral argument are
forfeited). Accordingly, I decline to address the vicarious
liability issue.
III.
I agree with Judge Brown about the virtue of our “narrow
holding”: “we have at least avoided making bad law.” Brown
Op. 21. As the thoughtful legal analyses of my colleagues
reveal, the Anti-Terrorism Act's civil liability provision raises
many difficult and still unresolved questions. What scienter
13
showing does the Act require? What is the scope of vicarious
liability? Does the intent requirement apply to every element
of the Act? That the parties, in addition to outright forfeiting
several arguments, barely, or at best poorly, address these
other questions confirms my judgment to cut a narrow path in
deciding this appeal.
BROWN, Circuit Judge, concurring in part and dissenting
in part: I concur in reversing the district court’s grant of
summary judgment in favor of the Palestinian Authority
(“PA”) on the Parsons family’s material support claim under
18 U.S.C. § 2339A. I dissent from the court’s affirmance of
summary judgment on the family’s conspiracy claim under
§ 2332(b). For three reasons, each of which is necessary to
my conclusion, I would reverse summary judgment on that
claim too. First, I respectfully disagree with Judge
Henderson’s conclusion that the Parsons family’s evidence is
insufficient to prove the PA “knowingly” provided material
support to, and conspired with, the terrorist who killed Mark
Parsons. Second, I respectfully disagree with Judge Tatel that
the Parsons family forfeited, as to its conspiracy claim, facts
we agree the family properly asserted about alleged bomber
Amer Qarmout in the material support context; and that the
evidence is insufficient to prove conspiracy. Finally, the
district court erred in concluding the Palestinian Authority
may not be held vicariously liable under the Anti-Terrorism
Act for the acts of its agents.
I
Judge Henderson would affirm the district court’s grant
of summary judgment in favor of the Palestinian Authority as
to both claims, because she thinks the Parsons family has not
satisfied the relevant scienter requirements for civil liability
under 18 U.S.C. §§ 2339A(a) and 2332(b). Like Judge Tatel,
I disagree with Judge Henderson, but we disagree for
different reasons. Judge Tatel relies on forfeiture, Tatel Op. at
10–11, and I would reach the merits. 1 The Parsons family
1
Consistent with Judge Tatel’s compartmentalized approach to the
evidence, which I address below, see infra pp. 8–15, he deals with Judge
Henderson’s scienter argument by finding the Palestinian Authority
“never identifies section 2339A’s state of mind requirement as a problem
2
satisfies the relevant scienter requirements as to both their
material support claim and their conspiracy claim.
A
The Anti-Terrorism Act provides a civil remedy for U.S.
nationals injured by an act of international terrorism. 18
U.S.C. § 2333(a). “[I]nternational terrorism” is defined to
mean extraterritorial or transnational activities that “involve
violent acts or acts dangerous to human life that are a
violation of the criminal laws of the United States or of any
State . . . [and] appear to be intended” to achieve the coercive
ends of terrorism. Id. § 2331(1). The Parsons family alleges
the Palestinian Authority committed the predicate criminal
offense of “provid[ing] material support or resources . . .
knowing or intending that they are to be used in preparation
for, or in carrying out a violation of section . . . 2332,” id.
§ 2339A(a), which in turn sanctions “[w]hoever kills a
national of the United States, while such national is outside
the United States,” id. § 2332(a).
for the specific theory we now accept, namely, that the personnel posted at
the checkpoint agreed to Qarmout’s request not to interfere with his
efforts to plant a bomb.” Tatel Op. at 10–11. But the PA’s argument is the
same for every theory—namely, that the guards did not know they were
materially supporting the killing of an American as opposed to, say, an
Israeli. I think it is sufficient for a party to raise a statutory scienter
defense once for the whole claim to which it applies. It is not necessary to
rehearse the same statutory argument for each specific theory of liability.
Precise arguments certainly benefit the judicial process, but we are judges,
not robots. Cf. Henderson Op. at 10 (“Judge Tatel unrealistically parses
the PA’s defense into discrete and seemingly unrelated arguments.”).
Moreover, the Parsons family conceded that liability under the material
support statute requires scienter as to the nationality of the victim, Oral
Arg. 9:50–10:06, so they cannot argue they were unfairly prejudiced by
the form of the Palestinian Authority’s arguments.
3
Because the Parsons family conceded as much, see Oral
Arg. 9:50–10:06, I assume the intent requirement of
§ 2339A(a) applies to each element of § 2332(a), even though
the latter section contains no intent requirement of its own.
Cf. Flores-Figueroa v. United States, 129 S. Ct. 1886, 1888–
89 (2009) (holding the scienter requirement in the phrase
“knowingly transfers . . . without lawful authority, a means of
identification of another person” applies to all elements of the
clause, including “of another person”); United States v. X-
Citement Video, Inc., 513 U.S. 64, 79 (1994) (Stevens, J.,
concurring) (same for elements in different subsections of a
single statutory section). In other words, to prevail on its
material support claim, the Parsons family must demonstrate
the Palestinian Authority “kn[ew] or intend[ed]” its material
support to assist not just any killing, but the killing of a U.S.
national. Thus, the first interpretive challenge is resolved by
agreement of the parties.
But the scienter requirement for material support entails
another interpretive problem: Section 2339A is a criminal
statute, but it is a predicate for civil liability under § 2333(a).
In the context of civil liability, we judge a violation of
§ 2339A differently than we would if this were a criminal
matter. For example, the Parsons family need not prove its
case beyond a reasonable doubt, but only by a preponderance
of the evidence. Likewise, the civil intent requirements apply,
not their criminal counterparts.
Viewed through the lens of civil liability, the “knowing
or intending” requirement of § 2339A is satisfied by criminal
recklessness, a deliberate indifference to the attendant risk—
here, the risk that the material support would be used to kill
an American. See Boim v. Holy Land Found. for Relief &
Dev., 549 F.3d 685, 693–94 (7th Cir. 2008) (en banc). Judge
Henderson cites the dissent in Boim to suggest there is
4
disagreement about the scienter requirement. Henderson Op.
at 3. But even the dissenters in Boim agree with the criminal
recklessness standard in theory. See id. at 721 (Wood, J.,
concurring in part and dissenting in part). They disagree over
the application of this standard to the facts, and this is where I
disagree with Judge Henderson. The Parsons family’s case is
even stronger than the case in Boim where a majority of the
Seventh Circuit concluded a mere monetary donation to
Hamas satisfied the criminal recklessness standard. Here, by
contrast, the Parsons family alleges National Security
personnel materially supported the planting of a specific
bomb and its detonation under a specific American convoy.
Deliberate indifference about the risk to Americans may
be reasonably inferred from the interaction of four main
pieces of evidence: Qarmout’s statement that he solicited the
cooperation of National Security personnel at the checkpoint
where he may or may not have actually planted the bomb, the
proximity of the bomb to that checkpoint, the presence of a
Palestinian Authority car at the head of the American convoy,
and the PA’s own investigative report, which concludes
National Security personnel tipped off the bomber about the
approaching American convoy. Viewed together, this
evidence is sufficient for a reasonable juror to conclude the
Palestinian Authority’s agents at least knew of the risk that
Americans would be targeted and disregarded that risk.
Judge Henderson points out that the unsigned PA report
requires a jury to infer something about the “reliability and
knowledgability of the statement’s author,” Henderson Op. at
5, but I think the origin, form, and substance of the report
reasonably support such an inference. See Talavera v. Shah,
638 F.3d 303, 308 (D.C. Cir. 2011) (“[T]he court must draw
all reasonable inferences in favor of the nonmoving party.”).
The Palestinian Authority itself produced the report in
5
discovery. It is addressed to the Director General of the PA’s
Preventive Security Service (“PSS”), and purports to be based
on firsthand examination of the evidence. Through '''''''''''''''
'''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''', the PA later confirmed it had
disclosed an “investigative file” documenting its
investigation, which “involved the forensic analysis of
material evidence gathered at the scene of the bombing.”
Sealed Appendix (“S.A.”) 259. The PA “verif[ied] that the
records produced are authentic copies of records kept in the
course of the investigation into the bombing.” Id.
An official government record such as this is entitled to a
presumption of regularity, rebuttable only upon a showing of
“clear or specific evidence.” PNC Fin. Servs. Group v.
Comm’r, 503 F.3d 119, 123 (D.C. Cir. 2007) (quoting Riggs
Nat’l Corp. v. Comm’r, 295 F.3d 16, 21 (D.C. Cir. 2002)
(affording the presumption of regularity to a foreign tax
receipt)). Since “the early days of the Republic,” the
presumption of regularity “has been applied in a variety of
contexts.” Am. Fed’n of Gov’t Emps. v. Reagan, 870 F.2d
723, 727 & n.33 (D.C. Cir. 1989) (collecting cases). It
governs not only records that “memorialize the occurrence of
a specific event,” Henderson Op. at 6, but also posits that
government officials follow proper procedures in the
conclusions, inferences, and subjective judgments they reach
in the regular course of their official duties. See, e.g.,
Musengo v. White, 286 F.3d 535, 538 (D.C. Cir. 2002) (an
Officer Evaluation Report used “to evaluate an [Army]
officer’s performance and career potential”); S. Pac.
Commc’ns Co. v. Am. Tel. & Tel. Co., 740 F.2d 980, 994
(D.C. Cir. 1984) (a judge’s adoption of findings and
conclusions from a party’s filing); McSurely v. McClellan,
697 F.2d 309, 324 (D.C. Cir. 1982) (a warrant issued pursuant
to “the judge’s independent opinion that there is probable
cause for an arrest or a search”); Jones v. United States, 342
6
F.2d 863, 884 (D.C. Cir. 1964) (“the findings of a grand
jury”). Of course, this presumption would not require a jury to
accept the author’s inference that National Security personnel
knew about the bomb and tipped off the bomber. But it does
mean that, absent “clear or specific evidence,” the report
should be presumed to be an “authentic copy” of “materials
prepared by [one of the PA Preventive Security] [S]ervices
investigating the bombing,” as the PA implied it was. S.A.
258, 259.
Judge Henderson assumes, in favor of the moving party,
that the report’s author was a rogue investigator who reached
unfounded conclusions despite unparalleled access to the
evidence. See Henderson Op. at 5–8. Contra Talavera, 638
F.3d at 308 (“The evidence is to be viewed in the light most
favorable to the nonmoving party.” (emphasis added)). There
is no basis for this assumption. Although the Palestinian
Authority is in the best position to do so, it has offered no
evidence, much less “clear or specific” evidence, that the
report’s author was unqualified to reach the conclusions he
did, or that he lacked an evidentiary basis for those
conclusions. 2
The report’s author inferred from the bomb’s proximity
to the checkpoint that National Security personnel “ha[d]
previous knowledge of the presence of the device.” S.A. 305.
Based on “the information in [his] possession,” the report’s
author also concluded that the checkpoint personnel or the
other National Security personnel accompanying the convoy
“leaked” “information of the arrival of US Embassy staff” to
the bomber. Id. A jury could reasonably infer that this
2
Judge Henderson notes the ''''''''' Declaration does not explicitly
discuss the PA report as it does Qarmout’s statement. Henderson Op. at 6
n.5. But '''''''''''' failure to single out the report from the rest of the PA’s
investigative file is hardly evidence that it is unreliable.
7
conclusion too was based on the bomb’s proximity to the
checkpoint—a detail that the report’s conclusion mentions
twice. Id. That the evidentiary basis for this conclusion is only
implicit in the report does not void the presumption of
regularity. See Am. Fed’n of Gov’t Emps., 870 F.2d at 724,
727. We are in no position to say the report’s inferences are
unreasonable, coming as they do from the PA’s own ranks
after an investigation that only the PA could have conducted.
Presumably security guards are responsible for being aware of
their surroundings, see Maj. Op. at 14, and there is something
suspicious about the timing of an attack that blows up U.S.
vehicles but misses the PA’s lead car. Former Palestinian
Security Minister Muhammad Dahlan’s statement on Al-
Arabiya TV that Palestinian security forces aided Hamas and
martyred themselves during the Second Intifada tends to
support that conclusion. See infra pp. 16–17. 3
This evidence may not be overwhelming, but at the
summary judgment stage it need only be sufficient. A jury
could reasonably be persuaded by the same evidence that
convinced the Palestinian Authority’s own investigator—
someone who presumably had access to the scene of the
bombing and knowledge of the environment. If the report is
correct, the checkpoint personnel acted with more than
deliberate indifference; they knowingly assisted in the
bombing of an American convoy.
3
Contrary to Judge Henderson’s implication, cf. Henderson Op. at 5
n.3, the record contains not just an English translation, but the video clip
of Dahlan’s statement itself, complete with Arabic audio. See Palestinian
Media Watch, PA Security Forces Aided Hamas During Intifada, PMW,
http://www.palwatch.org/main.aspx?fi=713&fld_id=713&doc_id=864
(last visited July 22, 2011). Presumably the video and its translation could
be authenticated at trial. See Tatel Op. at 2.
8
B
The same evidence that proves material support is
sufficient to prove the existence of a civil conspiracy.
Qarmout’s statement that he asked the National Security
personnel at the checkpoint to “turn their attention from the
young men who were planting the device” days before the
explosion, S.A. 323, supports a reasonable inference of “an
agreement to take part in an unlawful action.” Hall v. Clinton,
285 F.3d 74, 83 (D.C. Cir. 2002) (quoting Halberstam v.
Welch, 705 F.2d 472, 479 (D.C. Cir. 1983)). The
circumstances of the bombing and the PA report’s conclusion
that National Security personnel tipped off the bomber
support a reasonable inference of “an overt tortious act in
furtherance of the agreement that causes injury.” Id.
(emphasis omitted) (quoting Halberstam, 705 F.2d at 479).
Therefore, I would reverse the district court’s grant of
summary judgment on both claims.
II
Judge Tatel, who casts the deciding vote on each of the
Parsons family’s claims, splits the baby by separating with
almost surgical precision the evidence advanced in this court
for the various theories supporting each claim. The court
affirms summary judgment on the conspiracy claim because
Judge Tatel ignores the very same evidence we use to reverse
summary judgment on the material support claim—
Qarmout’s statement that, soon before Mark Parsons was
killed on Salahadeen Street, Qarmout took steps to plant a
bomb there and asked the National Security personnel at the
checkpoint to “turn their attention from the young men who
were planting the device.” S.A. 323. According to Judge
Tatel, we can overlook the most probative evidence of
conspiracy because (1) a party forfeits facts as to any theory
9
for which they are not explicitly argued on appeal, and (2)
“the family never defends their conspiracy claim by arguing,
as they do with respect to their material support claim, that
Qarmout planted the bomb with the help of those stationed at
the checkpoint.” Tatel Op. at 5. I respectfully disagree with
both premises.
A
Forfeiture is the “failure to make a timely assertion of a
right.” United States v. Olano, 507 U.S. 725, 733 (1993). Our
forfeiture doctrine applies to legal arguments, not facts.
Assuming an argument has been properly raised in the district
court, we consider it forfeited on appeal if the argument is
addressed in a conclusory fashion, see Bryant v. Gates, 532
F.3d 888, 898 (D.C. Cir. 2008), or only in a footnote, see
NSTAR Elec. & Gas Corp. v. FERC, 481 F.3d 794, 800 (D.C.
Cir. 2007); or if it is raised for the first time in a reply brief,
see Gen. Elec. Co. v. Jackson, 610 F.3d 110, 123 (D.C. Cir.
2010), or at oral argument, see United States v. Southerland,
486 F.3d 1355, 1360 (D.C. Cir. 2007). No similar rule bars
our consideration of a material fact once it has been placed in
dispute. Cf. Republic of Iraq v. Beaty, 129 S. Ct. 2183, 2192
(2009) (assuming the correctness of the proposition that “the
President cannot waive a fact”). 4 And we have never held that
we are powerless to consider a fact simply because it was
raised in the context of a different claim. The concept of
claim-specific forfeiture is foreign to facts because facts,
unlike legal arguments, are not context-dependent. A fact
cannot be true for some purposes and false for others. What
4
That facts and law are cut from different cloth is evident in the
general rule that parties may stipulate facts but not legal conclusions. See
Weston v. Washington Metro. Area Transit Auth., 78 F.3d 682, 685 (D.C.
Cir. 1996). Likewise, on appeal parties may forfeit legal arguments but not
facts.
10
would we say to a jury that found Qarmout planted the bomb
with regard to the material support claim but that he did not
plant the bomb with regard to the conspiracy claim? Cf.
Hundley v. District of Columbia, 494 F.3d 1097, 1102–03
(D.C. Cir. 2007) (ordering a new trial because “[t]here is no
coherent or reasonable way to reconcile the jury’s two
conclusions”). Judge Tatel’s treatment of the Parsons family’s
allegation is no more reasonable. Once a fact is in dispute, it
is before the court for all relevant purposes; any claim as to
which it is material is inappropriate for summary judgment.
As Judge Tatel notes, I have “not identified even a single
forfeiture case saying” our forfeiture doctrine does not apply
to facts. Tatel Op. at 8. But my failure to find precedent
proving this negative only highlights the novelty of his
argument. Far more telling is Judge Tatel’s failure to identify
a single case holding that facts properly raised as to one claim
are forfeited as to another, 5 or—even more implausibly—that
facts asserted as to one particular theory are forfeited as to
another theory of recovery under the same claim. Cf. Tatel
Op. at 7.
5
Judge Tatel cites one case in which he says we treated factual
assertions properly raised as to one claim as though forfeited for purposes
of another claim. Tatel Op. at 10 (citing Vickers v. Powell, 493 F.3d 186,
196 (D.C. Cir. 2007)). Not so. In that Title VII case, we noted the plaintiff
“never argued that the various discriminatory acts alleged in her hostile
work environment claim . . . were further evidence of pretext” in her
retaliation claim. Vickers, 493 F.3d at 196. The relevant forfeiture was
legal, not factual. Vickers never argued a legal theory under which prior
acts, by employees other than the official who fired her, could prove
pretext. We rightly declined to apply those properly asserted facts to a
legal argument Vickers had never articulated. The present case is
different: The Parsons family has consistently argued a legal theory
(whoever planted the bomb needed the guards’ complicity) into which the
allegedly forfeited fact (Qarmout planted the bomb) fits neatly.
11
Granted, facts not in the record may not be relied upon in
this court, see Carr v. Corning, 182 F.2d 14, 21 (D.C. Cir.
1950), and a party who admits or stipulates facts is bound by
that concession on appeal, see United States v. Warren, 42
F.3d 647, 658 (D.C. Cir. 1994). 6 Even when the record
contains relevant facts that have not been conceded away, “it
is not the task of this court . . . to search the record for
supporting evidence.” Edmond v. U.S. Postal Serv. Gen.
Counsel, 949 F.2d 415, 422 n.13 (D.C. Cir. 1991) (quoting
Tarpley v. Greene, 684 F.2d 1, 7 n.17 (D.C. Cir. 1982)). But
these evidentiary principles are distinct from the doctrine of
forfeiture, and they do not prevent us from considering
Qarmout’s statement in the conspiracy context. The Parsons
family has never conceded—for the purpose of its conspiracy
claim or for any other purpose—that Qarmout did not plant
the bomb. The district court clearly did not think so: In the
very decision we are reviewing, the court evaluated
Qarmout’s statement in the conspiracy context. Estate of
Parsons v. Palestinian Auth., 715 F. Supp. 2d 27, 34 (D.D.C.
2010). And on appeal, the family has consistently and
conspicuously asserted facts about Qarmout that, if true,
would prove their theory that whoever planted the bomb
conspired with the Palestinian Authority.
Especially at the summary judgment stage, it makes little
sense to speak of “forfeiting” facts as to one claim but not
6
As Judge Tatel points out, facts alleged at summary judgment by
the moving party are treated as “admitted” unless controverted by the non-
moving party. Tatel Op. at 8 (citing D.D.C. Local Civ. R. 7(h)(1)). This
only illustrates the principle that a party cannot rely on facts it has failed
to timely assert, and that a party is bound by its admissions. But once
controverted, a fact is controverted for all purposes. By the same token, a
fact asserted for one purpose is asserted for all purposes. It either
happened or it did not happen. The rule of constructive admission offers
no support to Judge Tatel’s notion that a fact asserted in the context of one
legal theory is forfeited as to another unless restated in the new context.
12
another. For at this stage, the scope of our review is at its
zenith. “In passing on a summary judgment motion, a court
may consider materials specified in Federal Rule of Civil
Procedure 56(c) as well as ‘any material that would be
admissible or usable at trial.’” Catrett v. Johns-Manville Sales
Corp., 826 F.2d 33, 38 (D.C. Cir. 1987) (emphasis omitted)
(quoting 10A C. WRIGHT, A. MILLER & M. KANE, FEDERAL
PRACTICE AND PROCEDURE § 2721 (2d ed. 1983)); see also
Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C.
Cir. 2008) (“When considering whether summary judgment
. . . is warranted . . . , the court considers all relevant evidence
presented by the plaintiff and defendant.”); Vickers, 493 F.3d
at 199 (“On summary judgment, we consider not just [the
plaintiff’s] allegations but also other supporting evidence” in
the record.); Hall v. Giant Food, Inc., 175 F.3d 1074, 1079
(D.C. Cir. 1999) (“The court must consider all the evidence in
its full context in deciding whether . . . summary judgment is
inappropriate.” (quoting Aka v. Washington Hosp. Ctr., 156
F.3d 1284, 1289 (D.C. Cir. 1998))). The Qarmout evidence is
clearly “usable at trial” to prove conspiracy, not just material
support. Catrett, 826 F.2d at 38. We need not ignore it simply
because it was raised in support of a different claim. The
same evidence proffered by the same plaintiffs against the
same defendant would go to the same jury for both claims. It
is for the jury to weigh that evidence in context.
B
Even if we had to sever a plaintiff’s claims from one
another and examine in isolation the evidence proffered for
each claim, I would still disagree with the suggested
application of this new rule. At the critical point in the
operation, the Solomonic scalpel slips. As Judge Tatel must
acknowledge, the Parsons family does rely on Qarmout’s
statement, not only for the material support claim, but also for
13
the conspiracy claim. In the section of its brief addressing the
conspiracy claim, the Parsons family cites the relevant
evidence and argues, “[i]t is clear from known-PRC-terrorist
Qarmout’s statement that anyone that planted the bomb on
[Salahadeen] Street that killed Mark Parsons must have
obtained the cooperation of the PA security checkpoint on the
road, which was 20 meters from the site of the detonated
bomb that killed Mark Parsons.” Appellants’ Br. 33.
Assuming the validity of Judge Tatel’s compartmentalized
approach to the evidence, Qarmout’s statement is properly
before the court as to the conspiracy claim, not just the
material support claim.
Judge Tatel acknowledges this reference to Qarmout’s
statement but construes it narrowly as an argument that
someone other than Qarmout himself conspired with the
Palestinian Authority to plant, conceal, or detonate the bomb.
Tatel Op. at 5. The court thus affirms summary judgment on
the conspiracy claim for want of an explicit allegation that
Qarmout conspired with the Palestinian Authority, despite the
Parsons family’s argument—based on Qarmout’s own
statement—that whoever planted the bomb would have
needed the Palestinian Authority’s cooperation. I do not see
why, in the conspiracy context, we should ignore Qarmout’s
likely involvement, while finding the very same evidence
sufficient to sustain a material support claim. Our task, at the
summary judgment stage, is to view all evidence “in the light
most favorable to the nonmoving party and draw[] all
reasonable inferences in its favor.” Capitol Sprinkler
Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 223 (D.C.
Cir. 2011) (quoting Venetian Casino Resort, LLC v. EEOC,
530 F.3d 925, 929 (D.C. Cir. 2008)). Excluding Qarmout
from the Parsons family’s reference to “anyone that planted
the bomb on [Salahadeen] Street” seems inconsistent with
14
that rule, especially after the family has consistently argued
Qarmout did just that and cited evidence to prove it.
C
Even if it were possible to forfeit facts, and even if the
Parsons family had forfeited the Qarmout evidence as to their
conspiracy claim, I would not ignore that evidence. We have
discretion to address forfeited issues, though we exercise it
“only in exceptional circumstances” or to correct plain error.
Salazar v. District of Columbia, 602 F.3d 431, 437 (D.C. Cir.
2010). Where, as here, the district court addressed the
supposedly forfeited fact in the relevant context, see Estate of
Parsons, 715 F. Supp. 2d at 34, the forfeiting party raised the
fact in a parallel context, see Appellants’ Br. 22–29, and the
adverse party suffered no prejudice from the forfeiture, I
would exercise our discretion to consider the fact at summary
judgment.
I disagree with Judge Tatel’s conclusion that the
Palestinian Authority suffered prejudice from the alleged
forfeiture. The Parsons family made no secret of its evidence
that Qarmout planted the bomb after procuring an agreement
from National Security personnel, and the family clearly
articulated a theory of conspiracy to match. Under these
circumstances, the Palestinian Authority was on notice of the
evidence it needed to rebut. Indeed, at oral argument the
Palestinian Authority repeatedly, and on its own initiative,
ventilated its arguments against the probative value of the
Qarmout evidence in the conspiracy context. See Oral Arg.
14:06–20, 15:20–16:37. Where a party responds to an issue
despite defects in its presentation, that party has suffered no
prejudice and a court need not consider the argument
forfeited. See MBI Group, Inc. v. Credit Foncier du
Cameroun, 616 F.3d 568, 571 (D.C. Cir. 2010); Horizon Air
15
Indus., Inc. v. U.S. Dep’t of Transp., 850 F.2d 775, 781 (D.C.
Cir. 1988).
Given the nature of the Parsons family’s allegations,
evidence sufficient to prove their material support claim is
also sufficient to prove conspiracy. Either way, the Parsons
family alleges the Palestinian Authority agreed to cooperate
with whoever planted the bomb. Where the prevailing
theories of material support and conspiracy overlap as they do
here, a defendant is unlikely to specially tailor a novel
argument against the sufficiency of the evidence to prove
conspiracy that he has not already raised in the material
support context. The same counterargument that fails to
defeat the material support claim necessarily fails in the
conspiracy context. The overlapping character of the family’s
claims was not lost on the Palestinian Authority. As the PA
expressed it, the Parsons family is “sort of cloaking what is a
conspiracy theory in a material support theory.” Oral Arg.
28:09–14. It is no wonder then that the Parsons family did not
devote equal space to the Qarmout evidence in each section of
its brief. Cf. Tatel Op. at 7. That would have been repetitive
and wasteful. 7 Because the Palestinian Authority could and
did respond to Qarmout’s statement in the conspiracy context,
I would not ignore that evidence.
7
Judge Tatel faults the Parsons family’s reply brief for not correcting
the Palestinian Authority’s misimpression that the PA report was the only
evidence relevant to the conspiracy claim. Tatel Op. at 8. I agree the
family could have been clearer, but its reply brief does demonstrate the
PA’s error by merging its treatment of material support and conspiracy
into a single discussion about the sufficiency of the Qarmout evidence.
Appellants’ Reply Br. 9–12.
16
D
Finally, even if I were persuaded to ignore the Qarmout
evidence, I would still vote to reverse the grant of summary
judgment against the Parsons family’s conspiracy claim. The
conclusion of the Palestinian Authority’s own investigative
report and the video recording of Muhammad Dahlan, former
Palestinian Minister of State Security, are sufficiently
probative to get this question to a jury.
Judge Tatel concludes the PA report is of insufficient
“caliber” to persuade a reasonable jury because it is
anonymous, undated, and leaves unstated some of the facts on
which it bases its inference of PA complicity. Tatel Op. at 4
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254
(1986)). This conclusion neglects the investigative report’s
provenance, treating it as if it were a friendly declaration
rather than the party-opponent admission it is. As I have
already argued, supra pp. 5–6, the report is a government
record entitled to a presumption of regularity. The Palestinian
Authority argues there might be innocent explanations for the
guards’ failure to prevent the planting of a bomb twenty
meters in front of their checkpoint: After all, the Gaza Strip is
a chaotic place, and the bomb may have been planted under
cover of darkness or when a guard was distracted. See Oral
Arg. 22:20–43. But, as Judge Tatel said in oral argument,
“That’s a great jury argument.” Id. 22:43–47. “[T]he
weighing of the evidence[] and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge.” Anderson, 477 U.S. at 253.
Judge Tatel also finds insufficiently probative then-
Security Minister Muhammad Dahlan’s statement that
Forty percent of the Martyrs in this Intifada
belonged to the Palestinian security forces.
17
The Palestinian security forces were those who
protected and hid half of the Hamas [military]
leadership and of the Hamas military force
during the Intifada.
Palestinian Media Watch, supra note 3. Judge Tatel is right
that Dahlan’s statement, by itself, does not prove “personnel
at this checkpoint were complicit in this attack.” Tatel Op. at
5. But this additional evidence certainly lends credibility to
the conclusions of the PA’s investigative report. Treating
each piece of evidence in isolation may lead to an erroneous
view of the whole. See Al-Adahi v. Obama, 613 F.3d 1102,
1105 (D.C. Cir. 2010) (“Those who do not take into account
conditional probability are prone to making mistakes in
judging evidence. They may think that if a particular fact does
not itself prove the ultimate proposition . . . the fact may be
tossed aside and the next fact may be evaluated as if the first
did not exist.”), cert. denied, 131 S. Ct. 1001 (2011). Parsons
was killed during the Second Intifada, and Dahlan’s statement
about the sympathy Palestinian Authority security forces
harbored toward its goals may inform a reasonable jury’s
view about the reliability of other evidence. Viewed together
with the PA report, Dahlan’s statement increases the
likelihood the Palestinian Authority conspired with whoever
was responsible for the bombing. It is the jury’s job to weigh
this evidence. Not ours.
III
The district court stated without explanation that “we
have no basis on which to assign vicarious liability to the PA
for the alleged criminal acts of a few employees.” Estate of
Parsons, 715 F. Supp. 2d at 34. We have never so held. Cf.
Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 & n.4
(D.C. Cir. 2003) (barring the Anti-Terrorism Act suit without
reaching the defendant’s vicarious liability argument). Judge
18
Henderson and Judge Tatel avoid deciding whether the
Palestinian Authority can be held liable for the actions of its
National Security checkpoint personnel by affirming
summary judgment on the conspiracy claim on other grounds.
I would reach this issue and reverse.
“[W]e start from the premise that when Congress creates
a federal tort it adopts the background of general tort law.”
Staub v. Proctor Hosp., 131 S. Ct. 1186, 1191 (2011).
Consistent with this principle, the Supreme Court has looked
to common law doctrines to determine the scope of liability
under federal tort laws, see Burlington N. & Santa Fe Ry. v.
United States, 129 S. Ct. 1870, 1881 (2009) (“Congress
intended the scope of [CERCLA] liability to be determined
from traditional and evolving principles of common law.”
(quotation mark and alteration omitted)), and of vicarious
liability in particular, see Burlington Indus. v. Ellerth, 524
U.S. 742, 764 (1998) (“accommodat[ing] the agency
principles of vicarious liability for harm caused by misuse of
supervisory authority” in Title VII). The Foreign Sovereign
Immunity Act confirms that to the extent it is not immune, a
“foreign state shall be liable in the same manner and to the
same extent as a private individual under like circumstances.”
28 U.S.C. § 1606. Respondeat superior liability is an
elementary principle of tort law and must therefore inform
our interpretation of the federal torts created in the Anti-
Terrorism Act. Thus, the Palestinian Authority is liable for
the acts its employees committed within the scope of their
employment. See Wilson v. Good Humor Corp., 757 F.2d
1293, 1301 (D.C. Cir. 1985).
The Palestinian Authority argues it cannot be held
vicariously liable for its employees’ acts because the ATA
awards treble damages, which the Palestinian Authority
equates with punitive damages; and punitive damages may
19
only be awarded under a vicarious liability theory if the
principal authorized, ratified, or approved the act, or if the
agent was employed in a managerial capacity and committed
the act within the scope of his employment. Appellees’ Br. 51
(citing Kolstad v. ADA, 527 U.S. 526, 542–43 (1999) (quoting
Restatement (Second) of Agency § 217C (1958))). 8
The Palestinian Authority’s central premise is false.
Treble damages are statutory or liquidated damages—not
punitive damages. The Restatement, on which the Kolstad
Court relied, explicitly exempts treble damages from the
punitive damages exception to its vicarious liability rule. See
Restatement (Second) § 217C, cmt. (c) (“The rule stated in
this Section does not apply to the interpretation of special
statutes such as those giving triple damages, as to which no
statement is made.”).
The Supreme Court’s statement of the punitive damages
exception to vicarious liability is entirely consistent on that
score with the underlying opinion of this court, which
explicitly distinguished treble damages from punitive
damages. Kolstad v. ADA, 139 F.3d 958, 966–67 (D.C. Cir.
1998) (en banc), vacated on other grounds, 527 U.S. 526
(1999). In that opinion we classified “double or treble
damages” with “numerically equal compensatory and
liquidated damages” for a single violation and concluded “it
is quite another [thing] to leverage a compensatory award into
a punitive award that is ten or a hundred times greater, with
no showing of heightened culpability.” Id. at 967; see also id.
at 966–67 (“liquidated damages under the ADEA and
punitive damages under Title VII are not twins”). Although
8
The Palestinian Authority does not mention that Kolstad and the
Restatement also allow punitive damages against a principal who “acts
recklessly in employing the malfeasing agent.” See Kolstad, 527 U.S. at
543.
20
courts have characterized treble damages as “punitive” for
other purposes, 9 our Kolstad opinion makes clear that for
purposes of selecting the applicable standard for vicarious
liability, treble damages are not punitive. Indeed, the Supreme
Court had already held, in the antitrust context, that treble
damages do not trigger the heightened standard for vicarious
liability. Am. Soc’y of Mech. Engineers, Inc. v. Hydrolevel
Corp., 456 U.S. 556, 575–76 (1982) (“Since treble damages
serve as a means of deterring antitrust violations and of
compensating victims, it is in accord with both the purposes
of the antitrust laws and principles of agency law to hold [the
principal] liable for the acts of agents committed with
apparent authority.” (citing Restatement (Second) of Agency
§ 217C, cmt. (c)). I see no basis for a terrorism exception to
the Supreme Court’s rule. 10
9
See Petrochem Insulation, Inc. v. NLRB, 240 F.3d 26, 34 (D.C. Cir.
2001) (deferring to the NLRB’s citation of a “company’s decision to seek
treble damages as additional evidence of retaliatory motive” but noting
that “had the suit not been so meritless—our view might be different”
(citing Kline v. Coldwell Banker & Co., 508 F.2d 226, 235 (9th Cir. 1974)
(characterizing antitrust treble damages as punitive))); United States ex
rel. Long v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 870, 877 (D.C. Cir.
1999) (characterizing treble damages under the False Claims Act as “a
form of punitive damages that would be palpably inconsistent with state
liability”); Fleming v. FTC, 670 F.2d 311, 314–15 (D.C. Cir. 1982)
(concluding that a civil antitrust suit for treble damages constitutes an
official law enforcement purpose under §§ 6(f) and 21(b)(6) of the Federal
Trade Commission Improvements Act of 1980 because such suits are not
only “remedial and compensatory in nature” but also “punitive or
prophylactic”); see also Pacificare Health Sys., Inc. v. Book, 538 U.S.
401, 406–07 (2003) (leaving for the arbitrator the question whether an
arbitration agreement which precluded punitive damages also barred treble
damages under RICO).
10
The ATA’s legislative history confirms that the primary purpose
of the statutory multiplier is to deter future acts of terrorism, not to punish
the defendant’s moral culpability. See Antiterrorism Act of 1990: Hearing
on S. 2465 Before the Subcomm. on Courts and Administrative Practice of
the S. Judiciary Comm., 101st Cong. 34 (1990) (statement of Steven R.
21
The district court evaluated the Palestinian Authority’s
report and Qarmout’s testimony under the false assumption
that they would have to support “a conspiracy claim against
the entire PA” to go to a jury. Estate of Parsons, 715 F. Supp.
2d at 34. Instead, the conspiracy of an individual PA
employee acting within the scope of his employment suffices
to make the PA itself liable. See Wilson, 757 F.2d at 1301.
Under this standard, the Parsons family has alleged a
conspiracy involving National Security personnel for which
the Palestinian Authority may be held liable. I would reverse.
IV
In my experience, it is rare for three appellate judges to
disagree with each other so thoroughly, but in this hard case it
may be just as well. With only a narrow holding between us,
we have at least avoided making bad law.
Valentine, Deputy Assistant Att’y Gen., Civil Division) (“[The ATA]
provides a federal forum for any national of the United States to seek
compensation in the form of treble damages for injuries resulting from
acts of international terrorism”); id. at 85 (statement of Joseph A. Morris,
President and General Counsel of the Lincoln Legal Foundation) (“[B]y
its provisions for compensatory damages, treble damages, and the
imposition of liability at any point along the causal chain of terrorism, it
would interrupt, or at least imperil, the flow of terrorism’s lifeblood:
money.”).