Estate of Parsons v. Palestinian Authority

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.

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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

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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

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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

œœœœœ 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

œœœœœœœœœœœœœœœœœ was œœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœ

œœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœ Gaza” at the time

of the explosion. œœœœœœœ Decl. ¶ 7. In that role he œœœœœœœœœœœœœœœœœ

œœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœœ 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 œœœœœœ 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 œœœœœœ 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.

œœœœœœ Decl. ¶¶ 17-18. œœœœœœœœ 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 œœœœœœ 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.”).