UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEREN KAYEMETH LEISRAEL-
JEWISH NATIONAL FUND et al.,
Plaintiffs,
V. Civil Case No. 19-3425 (RJL)
EDUCATION FOR A JUST PEACE
IN THE MIDDLE EAST d/b/a US
CAMPAIGN FOR PALESTINIAN
RIGHTS
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Defendant. )
MEMORANDUM OPINION
March@? 2021 [Dkt. # 19]
Plaintiffs in this suit are an Israeli company and American citizens and their families
living in Israel, who have allegedly suffered harm from acts of international terrorism in
Israel. They bring this suit against Education for a Just Peace in the Middle East, d/b/a/
US Campaign for Palestinian Rights (hereinafter “defendant” or “US Campaign”), a U.S.
non-profit organization. They allege that defendant engaged in acts of terrorism, or aided
and abetted such acts, and is therefore liable under the Anti-Terrorism Act (“ATA”) and
various state laws. Defendant moves to dismiss plaintiffs’ claims, arguing that plaintiffs’
complaint fails to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See
Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) [Dkt. # 19].
While I sympathize with plaintiffs for the mental anguish, emotional pain, and other
suffering they have endured, I cannot conclude that the law provides the relief plaintiffs
seek in this case. Accordingly, and after due consideration of the briefing, the relevant
law, the entire record, and for the reasons stated below, defendant’s Motion to Dismiss is
GRANTED.
BACKGROUND
Hamas was designated as a Foreign Terrorist Organization (“FTO”) on October 8,
1997, along with certain other relevant groups including the Palestine Liberation Front
(“PLF”), Palestine Islamic Jihad (“PIJ’’), and the Popular Front for the Liberation of
Palestine (“PFLP”), and has maintained that designation ever since. See Compl. 9 29, 62.
Hamas has been held responsible in U.S. courts, including this one, for terrorist attacks in
which American and Israeli citizens have been killed or injured. Jd. § 39. Hamas has
exercised some degree of control over Gaza since 2007. Jd. 9 42-43. Rockets and other
incendiary devices, including kites and balloons equipped with flammable materials and/or
incendiary or other explosive devices, have been launched from Gaza by Hamas and other
groups. Id. {| 49-52. According to plaintiffs, similar devices have also been launched at
the Great Return March (“GRM”), an ongoing Palestinian protest in Gaza. Id. J¥ 86-88.
The individual and family plaintiffs allege that they live “in constant fear” of rocket attacks
and incendiary devices, and have allegedly suffered damage to property, emotional
suffering, loss of the use of public spaces and roads, and other distress due to these attacks.
See generally id.
Defendant is a U.S.-based 501(c)(3) non-profit organization founded in 2004. Id. qj
22. Among other things, defendant provides financial and other support to the BDS
National Committee (“BNC”), and has supported or encouraged the GRM. See Plaintiffs’
Opposition to Defendant’s Motion to Dismiss (“Pls. Opp.’’) at 2-3. According to plaintiffs,
the BNC is comprised of Hamas and other U.S. designated FTO’s, and the GRM is led and
directed by Hamas. J/d.; Compl. {§ 24-25, 88-107, 120-131. Plaintiffs claim that
defendant’s financial and other support of the BNC and GRM render it liable, both directly
and indirectly, under the ATA and several state laws for the injuries plaintiffs have
suffered. Compl. {J 197-271.
LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Again, I must accept as true all factual
allegations in the complaint and draw all reasonable inferences in favor of the plaintiffs,
but I need not “accept inferences unsupported by facts or legal conclusions cast in the form
of factual allegations.” See City of Harper Woods Emps.’ Ret. Sys. v. Olver, 589 F.3d 1292,
1298 (D.C. Cir. 2009).
ANALYSIS
Plaintiffs contend that defendant is both directly and secondarily liable under the
ATA. The ATA creates a private cause of action for those harmed by international
terrorism, providing that “[a]ny national of the United States injured in his or her
person... by reason of an act of international terrorism .. . may sue therefor . . . and shall
recover threefold . . . damages.” 18 U.S.C. § 2333(a). Thus, to prevail on an ATA claim, a
plaintiff must show that (1) a U.S. national suffered an injury; (2) an act of international
terrorism occurred; and (3) the U.S. national’s injury occurred “by reason of” the act of
international terrorism.
In 2016, Congress amended the ATA to permit aiding-and-abetting liability claims.
See 18 U.S.C. § 2333(d). Aiding-and-abetting liability requires that “an act of international
terrorism” was “committed, planned, or authorized by an organization that had been
designated as a foreign terrorist organization under section 219 of the Immigration and
Nationality Act (8 U.S.C. 1189), as of the date on which such act of international terrorism
was committed, planned, or authorized.” Jd. Such secondary liability extends to “any
person who aids and abets, by knowingly providing substantial assistance, or who
conspires with the person who committed such an act of international terrorism.” Jd.
I. Direct Liability
Plaintiffs allege that defendant is directly liable under the ATA for its alleged
financial and other support of Hamas, through its financial and other support of the BNC,
support for the GRM, and participation in the “Stop the JNF Campaign.” Those claims
fail, however, because plaintiffs do not plausibly allege that defendants caused their
injuries.
“[T]he ATA’s ‘by reason of language demands a showing of proximate causation.”
Owens v. BNP Paribas, S.A., 897 F.3d 266, 273 (D.C. Cir. 2018); see also 18 U.S.C.
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§ 2333(a). “[P]roximate cause prevents liability where there is not a sufficient link between
the defendant’s conduct and the plaintiffs injuries.” Crosby v. Twitter, Inc., 921 F.3d 617,
623 (6th Cir. 2019) (“[A] butterfly in China is not the proximate cause of New York
storms.”). “To survive a motion to dismiss for failure to state a claim, [p]laintiffs must
therefore plausibly allege (1) that [defendant’s] acts were ‘a “substantial factor” in the
sequence of events’ that led to their injuries and (2) that those injuries ‘must have been
“reasonably foreseeable or anticipated as a natural consequence” of? [defendant’s]
conduct.” Owens, 897 F.3d at 273 (quoting Owens v. Republic of Sudan, 864 F.3d 751,
794 (D.C. Cir. 2017)).
Plaintiffs cannot satisfy this first requirement. To establish that defendant’s conduct
was a “substantial factor,” plaintiffs must show “some direct relation between the injury
asserted and the injurious conduct alleged.” Jd. at 273 n.8. In other words, defendant’s
alleged wrongful conduct must have “led directly” to the plaintiffs’ injuries. Jd. And, as
our Circuit Court and others have recognized, because “the presence of an independent
intermediary” makes a defendant “more than one step removed from a terrorist act or
organization,” it “create[s] a more attenuated chain of causation ... than one in which a
supporter of terrorism provides funds directly to a terrorist organization.” Id. at 275; see
Rothstein v. UBS AG, 708 F.3d 82, 97 (2d Cir. 2013).
Plaintiffs fail to allege any facts to support their contention that the US Campaign
provided direct support to Hamas. Instead, any specific allegations of support involve the
US Campaign’s support of the BNC or other intermediate groups or causes. Compl. {ff
122-123, 127-143. And, although plaintiffs allege that the BNC “consist[s] of US
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designated Foreign Terror Organizations,” Compl. § 123, the Complaint itself
acknowledges that the BNC is a broad coalition leading a global movement for Palestinian
rights, whose activities include supporting boycotts and engaging university campuses,
academic associations, and other communities to “engage in mass popular resistance for
dignity and liberation.” Jd. at JJ 123, 131. According to plaintiffs’ allegations, the US
Campaign gives financial and other support to the BNC, and BNC members have attended
| the GRM, at which Hamas and other terrorist organizations have planted explosive charges
and launched incendiary balloons. Jd. F§ 1, 112-118. Those allegations, however, do not
establish the substantial connection between the defendant and the alleged terrorist acts or
organizations necessary for proximate causation. Owens, 897 F.3d at 276. And while
plaintiffs make broad allegations that the US Campaign provided financial assistance to
Hamas, see Compl. { 205, they fail to plead factual allegations sufficient to support these
claims. The more specific factual allegations involving the US Campaign’s financial and
other support of the BNC and other groups are simply too removed from a terrorist act or
organization to state a claim under the ATA. See Owens, 897 F.3d at 275.
Plaintiffs’ arguments to the contrary are, to say the least, not persuasive. Plaintiffs
focus on the difference between a “but for” and “substantial factor” standard for causation,
but under either standard, plaintiffs fall short of alleging facts to tie the US Campaign to
the alleged terrorist acts that injured plaintiffs. Even accepting plaintiffs’ allegations that
BNC and Hamas are somehow interchangeable, the law does not require independence
from terrorist groups. In Owens and Rothstein, the intermediaries at issue—Sudan and
Iran, respectively—were designated state sponsors of terrorism. See Owens, 897 F.3d at
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269 (acknowledging Sudan provided al Qaeda with “critical financial, military, and
intelligence services.”); Rothstein, 708 F.3d at 85, 97 (rejecting plaintiffs’ causation theory
despite their allegations that Iran “controlled, funded, and operated” Hezbollah). And yet,
those intermediaries’ intervening role defeated causation. So too here.
Plaintiffs’ conclusory assertions that the US Campaign directly financed or
supported Hamas, lacking in any specific factual basis, cannot save plaintiffs’ direct-
liability claims. See Owens, 897 F.3d at 276 (“[T]hese are conclusory allegations that do
not meet Twombly’s plausibility standard with respect to the need for a proximate causal
relationship . . . .” (quoting Rothstein, 708 F.3d at 97)).
Il. Aiding-and-Abetting Liability
Plaintiffs also claim that defendants aided and abetted Hamas’s acts of terrorism.
Compl. ff 197-210; see 18 U.S.C. § 2333(d)(2). Under the 2016 amendments to the ATA,
a defendant is indirectly liable for “‘an injury arising from an act of international terrorism
committed, planned, or authorized by an organization that had been designated as a foreign
terrorist organization” if the defendant “knowingly provid[ed] substantial assistance,
or... conspire[d] with the person who committed such an act of international terrorism.”
§ 2333(d)(2).
Plaintiffs fail to satisfy the statutory requirements for aiding-and-abetting liability.
First, plaintiffs’ complaint does not allege that Hamas planned or authorized any, much
less all, of the attacks at issue. The best plaintiffs can muster is that the rockets, incendiary
terror balloons, and kites that allegedly caused fear and terror to plaintiffs were launched
“by HAMAS and/or others.” See Compl. § 10 (emphasis added). Plaintiffs offer no
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concrete factual allegations that Hamas “planned” or “authorized” any specific attack,
much less the specific incidents that injured plaintiffs. See id. That “[t]hreadbare recital[]”
is not enough. Iqbal, 556 U.S. at 678.
Second, to the extent plaintiffs allege that the BNC has ties to and has provided
general support to Hamas and other terrorist groups, see Compl. {{{ 70-80, those allegations
do not establish that the BNC “planned” or “authorized” the attacks at issue, 18 U.S.C.
§ 2333(d)(2). General support or encouragement is not enough. See Crosby, 921 F.3d at
626 (concluding plaintiffs’ allegations that ISIS “virtually recruited” the perpetrator were
insufficient to establish that it “authorized” the attack at issue).
Moreover, as numerous courts have held, plaintiffs’ “fail[ure] to allege a direct link
between the defendants and the individual perpetrator” warrants dismissal of their aiding-
and-abetting liability claims. Crosby v. Twitter, Inc., 921 F.3d 617, 627 n.6 (6th Cir. 2019)
(collecting cases and noting that courts “routinely dismiss” aiding-and-abetting ATA
claims on that basis).
Even assuming defendants were sufficiently connected to Hamas, plaintiffs’
allegations fail to establish that any assistance was “substantial.” For the assistance to be
“substantial,” the ATA “requires more than the provision of material support to a
designated terrorist organization.” Linde v. Arab Bank, PLC, 882 F.3d 314, 329 (2d Cir.
2018). Rather, “the secondary actor [must] be ‘aware’ that, by assisting the principal, it is
itself assuming a ‘role’ in terrorist activities.” Jd. (quoting Halberstam v. Welch, 705 F.2d
472,477 (D.C. Cir. 1983)); accord Crosby v. Twitter, Inc., 303 F. Supp. 3d 564, 574 (E.D.
Mich. 2018), aff'd, 921 F.3d 617 (6th Cir. 2019). And, in enacting JASTA, Congress noted
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that the six factors identified in our Circuit Court’s decision in Halberstam v. Welch were
useful in determining “how much encouragement or assistance is substantial enough.” 705
F.2d at 478; 18 U.S.C. § 2333 Statutory Note (Findings and Purpose (a)(5)). Those factors
are: (1) the nature of the act-encouraged, (2) the amount of assistance given by defendant,
(3) defendant’s presence or absence at the time of the tort, (4) defendant’s relation to the
principal, (5) defendant’s state of mind, and (6) the duration of defendant’s assistance. 705
F.2d at 483-84. When applied to plaintiffs’ allegations, however, the Halberstam factors
demonstrate defendant’s purported aid was not substantial.
In evaluating the first and second factors, Halberstam asks whether the act was
“heavily dependent” on the assistance provided, or whether the assistance was
“indisputably important” to, or an “essential part of” the act. 705 F.2d at 488. Plaintiffs
allege that defendant provided unspecified amounts of financial and other support to the
BNC, and that through its sponsorship of the BNC and otherwise, facilitated the ability of
Hamas to carry out terrorist attacks. See Compl. ff 205-208. They do not allege that
defendants directly assisted Hamas itself, or even that certain financial or other support
provided by defendant was useful to or used by Hamas in carrying out the alleged attacks.
Instead, plaintiffs make threadbare assertions that defendant provided substantial
assistance and played an integral role in Hamas and other foreign terror organizations’
terrorist activities, without specifying what support played such a role, or how. Those
allegations do not plausibly suggest that the alleged terrorist acts carried out by Hamas
and/or other terrorist organizations were “heavily dependent” on defendant’s purported
assistance. Halberstam, 705 F.2d at 488. At most, they suggest defendants provided
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general support to the BNC, which may have itself provided support to Hamas or other
groups. But absent a link between that support and the principal violation, defendant’s
purported assistance is not substantial. With respect to the third factor, plaintiffs do not
allege that defendants were present at any of the attacks.
In evaluating the fourth factor, Halbertstrom asks whether the defendant has a
special relation to the principal. Although plaintiffs argue that the defendant had a “direct”
and “close” relationship with Hamas, Pls. Opp. at 24, they fail to plead factual allegations
to demonstrate such a direct relationship. Instead, plaintiffs’ factual allegations point to
defendant’s relationship with BNC, which they then allege has direct ties to Hamas and
other terrorist organizations. See Compl. {{ 70-80.
The fifth factor—state of mind—also weighs against finding that defendants’
alleged assistance was substantial. In Halberstam, our Circuit Court considered whether
the defendant was “one in spirit” with the tortfeasor or “desire[d] to make the venture
succeed.” 705 F.2d at 484, 488. Here, plaintiffs allege defendant knowingly provided
financial and other support and were aware those resource would be used by Hamas and
other groups to support terrorist attacks. Compl. § 205; Pls.” Opp. at 23-24. Those
allegations do not even suggest defendants were “one in spirit” with Hamas or that
defendants intended to help Hamas or other groups succeed in perpetuating violent attacks.
Crosby, 303 F. Supp. 3d at 574 (noting defendants were not “of a mind to see [the act of
terrorism] take place” and concluding aiding and abetting liability “cannot be premised
merely on a finding that the defendant knowingly provided support to a designated terrorist
organization”); Taamneh, 343 F. Supp. 3d at 917 (concluding defendants not “one in spirit”
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with ISIS where plaintiffs did not allege defendants had “any intent to further ISIS’s
terrorism”).
The parties make no argument regarding the sixth factor—duration of the aid
provided. Plaintiffs allege that defendant became a major partner with the BNC as early
as 2008. This factor alone, however, is not enough to establish that aid was substantial,
given the other factors.
Thus, having evaluated all of the factors identified in Halberstam, I cannot possibly
conclude that defendants “assum[ed] a role” in Hamas or other organizations’ terrorist
activities such that any assistance was “substantial.” Linde, 882 F.3d at 329. As such,
plaintiffs have failed to state a claim for aiding-and-abetting liability under the ATA.
Those claims, accordingly, must be dismissed.
IW. State Law Claims
Finally, because I have found that plaintiffs have failed to allege a substantial federal
cause of action, I will dismiss plaintiffs' D.C. law claims for lack of pendent jurisdiction.
28 U.S.C. § 1367(a). After all, in exercising this discretion, I must balance the traditional
“values of judicial economy, convenience, fairness, and comity,” and the plaintiffs here,
like the plaintiffs in so many other cases, can’t survive that juggling exercise.
See Carnegie—Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720
(1988). “[I]n the usual case in which all federal-law claims are dismissed before trial, the
balance of [these] factors ... will point toward declining to exercise jurisdiction over the
remaining state-law claims.” Jd. at 350 n.7; see also United Mine Workers v. Gibbs, 383
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U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial, ... the
state claims should be dismissed as well.’’).
CONCLUSION
For all of the foregoing reasons, defendant’s motion to dismiss is GRANTED. A
separate order consistent with this decision accompanies this Memorandum Opinion.
United States District Judge
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