James Owens v. BNP Paribas, S.A.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 14, 2017 Decided July 27, 2018

No. 17-7037

JAMES OWENS, ET AL.,

APPELLANTS

v.

BNP PARIBAS, S.A., ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cv-01945)

John Vail argued the cause for appellants. With him on the

briefs were Thomas F. Fay and Jane C. Norman.

Jeffrey R. White was on the brief for amicus curiae

American Association for Justice in support of appellants.

Lawrence B. Friedman argued the cause for appellees.

With him on the brief were Jonathan I. Blackman and Alexis

Collins.

David D. DiBari and Stephen M. Nickelsburg were on the

brief for amicus curiae Institute of International Bankers in

support of appellees.

2

Before: GRIFFITH and WILKINS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: In 1998, al Qaeda detonated

truck bombs outside the U.S. embassies in Nairobi, Kenya, and

Dar es Salaam, Tanzania, killing over two hundred people and

injuring several thousand more. Victims of these attacks sued

the French bank BNP Paribas for damages under the Anti-

Terrorism Act (ATA), alleging the bank provided financial

assistance to Sudan, which in turn funded and otherwise

supported al Qaeda’s attack. Because the victims fail to

plausibly allege BNP Paribas caused their injuries, and because

the ATA does not permit recovery for claims premised on

aiding and abetting liability, the district court dismissed the suit

for failure to state a claim. We affirm.

I

A

On August 7, 1998, truck bombs exploded outside the U.S.

embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. At

least twelve of the more than two hundred deaths and many of

the 4,000 injured individuals were U.S. nationals. See Owens

v. Republic of Sudan, 412 F. Supp. 2d 99, 102 (D.D.C. 2006).

Osama bin Laden and al Qaeda claimed responsibility. The

embassy bombings served as a prelude to subsequent al Qaeda

attacks against the United States, culminating in the atrocities

of September 11, 2001.

But al Qaeda didn’t act alone. The Republic of Sudan and

the Islamic Republic of Iran helped facilitate the embassy

bombings in several ways. For its part, Sudan provided safe

3

harbor for al Qaeda’s operational and logistical supply

network, as well as critical financial, military, and intelligence

services. See Owens v. Republic of Sudan, 826 F. Supp. 2d 128,

139-46 (D.D.C. 2011). In the early 1990s, Sudan invited al

Qaeda to relocate from Afghanistan and promised the

government’s support. Am. Compl. ¶ 104. Al Qaeda accepted

the invitation and moved its operations to Sudan, purchasing

real estate and agreeing to supply the Sudanese government

with communications equipment, weapons, and labor for

making chemical weapons. Id. In return, the Sudanese

government provided al Qaeda with airplanes to bring their

missiles from Afghanistan to Sudan, security, intelligence-

gathering services, travel documents, economic aid, and

uranium. Id.

In response to Sudan’s growing ties to terrorist

organizations, the U.S. Secretary of State designated the

country as a state sponsor of terrorism in 1993. Id. ¶¶ 47, 61.

The Secretary noted that the Sudanese government harbored

international terrorists, maintained close ties to Iran, and

provided meeting locations, transit points, and safe havens for

various radical extremist groups. Id. ¶ 61. The United States

thereafter placed sanctions on Sudan, restricting U.S. foreign

assistance to its government, banning defense exports and

sales, and imposing various financial constraints. Id. ¶ 62.

By the late 1990s, the United States placed even greater

restrictions on trade with Sudan. In 1997, President Clinton

issued an executive order imposing a complete trade embargo

that prohibited the exportation of all goods and services—

including financial services—to Sudan unless the exporter

received a license from the Office of Foreign Assets Control

(OFAC). Id. ¶¶ 63-65. And in 1998, OFAC designated all of

Sudan’s national and major commercial banks as “Specially

Designated Nationals,” id. ¶¶ 67-68, subjecting them to even

4

more onerous trade restrictions and sanctions, see 31 C.F.R.

§ 515.306.

BNP Paribas, S.A. (BNPP), the largest bank in France,

sought to evade U.S. sanctions on Sudan applicable to

international institutions. Am. Compl. ¶¶ 30, 73. In 2014,

BNPP admitted as much when it pleaded guilty in federal court

to illegally conspiring with banks and other entities to evade

the sanctions regime and unlawfully move nearly $9 billion

through the U.S. financial system. Id. ¶ 73; see also id. ¶¶ 7-8,

95, 105-07, 109-15, 126-27; Statement of Facts, United States

v. BNP Paribas, S.A., No. 1:14-cr-00460 (S.D.N.Y. May 1,

2015), J.A. 90-125.

At least $6 billion of these illegally processed funds

involved Sudanese banks and financial institutions. Statement

of Facts ¶ 17, J.A. 95. BNPP pleaded guilty to circumventing

sanctions on Sudan only from 2002 to 2007, well after the

embassy bombings. Am. Compl. ¶ 76; see also Statement of

Facts ¶ 17, J.A. 95. However, in support of its guilty plea,

BNPP stipulated that by 1997 one of its subsidiaries had

become the “correspondent bank” in Europe for a Sudanese

government bank and all the major commercial banks in Sudan.

Am. Compl. ¶ 82 (quoting Statement of Facts ¶ 19, J.A. 96-97).

This meant that almost every Sudanese bank began to keep

U.S. dollar accounts with BNPP. Id. (quoting Statement of

Facts ¶ 19, J.A. 96-97). Moreover, BNPP admitted that it used

various “satellite banks” outside the United States to facilitate

U.S. dollar payments for Sudanese banks and evade the U.S.

sanctions. Id. ¶¶ 87-88, 90-91 (quoting Statement of Facts ¶ 23-

24, J.A. 99-100). Between 2002 and 2007, BNPP used this

satellite-bank structure to process “thousands of U.S. dollar

transactions, worth billions of dollars” for sanctioned Sudanese

banks. Id. ¶ 92 (quoting Statement of Facts ¶ 24, J.A. 99-100).

5

B

The ATA creates a private cause of action for those

harmed by international terrorism. Specifically, the ATA

provides that “[a]ny national of the United States injured in his

or her person . . . by reason of an act of international terrorism

. . . may sue therefor . . . and shall recover threefold . . .

damages.” 18 U.S.C. § 2333(a). Therefore, on its face, the ATA

has three essential elements. First, a U.S. national must have

suffered an injury. Second, there must have been an act of

international terrorism.1 And third, the U.S. national’s injury

must have occurred “by reason of” the act of international

terrorism. That is, there must be some causal connection

between the act of international terrorism and the U.S.

national’s injury.2

1

An activity must meet three criteria to qualify as

“international terrorism.” First, the activity must “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) (1996). Second, the

activity must appear to be intended to “intimidate or coerce a civilian

population”; “influence the policy of a government by intimidation

or coercion”; or “affect the conduct of a government by assassination

or kidnapping.” Id. § 2331(1)(B)(i)-(iii). Third, the activity must

“occur primarily outside the territorial jurisdiction of the United

States, or transcend national boundaries in terms of the means by

which they are accomplished, the persons they appear intended to

intimidate or coerce, or the locale in which their perpetrators operate

or seek asylum.” Id. § 2331(1)(C).

2

Because treble damages usually have a punitive aim, several

courts have also interpreted § 2333 to require that a defendant act

with some scienter above negligence, independent of any scienter

required to commit the predicate act of international terrorism. See

6

Plaintiffs are U.S. nationals injured in the 1998 embassy

bombings, or the estates, heirs, or survivors of U.S. nationals

who died or were severely injured in the bombings. See Am.

Compl. ¶¶ 22-26. They previously sued Sudan under the

Foreign Sovereign Immunities Act, alleging that Sudan offered

material support to al Qaeda’s bombing of the embassies, and

in 2011 received default judgments against the country. Id.

¶¶ 24, 27.

Several months after BNPP’s 2014 federal plea, Plaintiffs

filed their present complaint in district court. 3 Based on

BNPP’s stipulations in its guilty plea, Plaintiffs allege the bank

provided material support to al Qaeda by processing financial

transactions for Sudanese banks, converting Sudanese

resources into U.S. banknotes, and circumventing U.S.

sanctions on Sudan. Id. ¶¶ 6-8. Those Sudanese banks then sent

that U.S. currency to al Qaeda, which used the funds to commit

the embassy bombings. See id. ¶ 118.

On appeal, Plaintiffs claim BNPP’s role in processing

financial transactions for Sudanese banks violated two federal

laws prohibiting the provision of material aid and support to

Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 692-93

(7th Cir. 2008) (en banc); see also Sokolow v. Palestine Liberation

Org., 60 F. Supp. 3d 509, 515 (S.D.N.Y. 2014); Gill v. Arab Bank,

PLC, 893 F. Supp. 2d 474, 503 (E.D.N.Y. 2012); Wultz v. Islamic

Republic of Iran, 755 F. Supp. 2d 1, 42 (D.D.C. 2010). Whether this

is right has no bearing on this appeal.

3

Plaintiffs also sued two of BNPP’s wholly owned

subsidiaries, BNP North America, Inc. and BNP Paribas (Suisse)

S.A. See Am. Compl. ¶¶ 2, 29-40. We refer to these entities

collectively as “BNPP.”

7

terrorists and terrorist groups, see id. ¶¶ 116-20, 4 both of

which may constitute acts of international terrorism under the

ATA, see, e.g., Linde v. Arab Bank, PLC, 882 F.3d 314, 325-

26 (2d Cir. 2018); Boim v. Quranic Literacy Inst. (“Boim I”),

291 F.3d 1000, 1015 (7th Cir. 2002), overruled sub nom. Boim

v. Holy Land Found. for Relief & Dev. (“Boim III”), 549 F.3d

685 (7th Cir. 2008) (en banc).5 First, Plaintiffs claim BNPP

“provide[d] material support or resources [to terrorists] . . .

knowing or intending that they are to be used in preparation

for, or in carrying out, a violation of” certain enumerated

criminal laws. 18 U.S.C. § 2339A(a). Second, Plaintiffs claim

BNPP “knowingly provide[d] material support or resources to

a foreign terrorist organization.” Id. § 2339B(a)(1).6

4

Plaintiffs initially pled a violation of a third statute, 18 U.S.C.

§ 2339C, which criminalizes providing or collecting funds with

knowledge that such funds would be used to carry out acts intending

to cause death or serious bodily injury in order to intimidate a

population or government. See Am. Compl. ¶¶ 116, 121-29. The

district court dismissed this claim because § 2339C was enacted in

2002, post-dates the conduct at issue in this case, and does not apply

retroactively. See Owens v. BNP Paribas S.A., 235 F. Supp. 3d 85,

98 (D.D.C. 2017). Plaintiffs do not appeal this aspect of the district

court’s decision and we therefore do not address the § 2339C claim.

5

The district court held that Plaintiffs failed to plausibly allege

that BNPP had sufficient knowledge of the Sudanese banks’ ultimate

investments to satisfy the scienter requirements of either 18 U.S.C.

§ 2339A or § 2339B. See Owens, 235 F. Supp. 3d at 98-99. Because

we ultimately resolve the issue of primary liability on grounds of

causation, we do not decide whether BNPP actually violated either

§ 2339A or § 2339B. Nor do we decide whether BNPP’s violation of

either of those provisions would have qualified as an act of

“international terrorism” under the ATA.

6

Because BNPP’s alleged conduct took place in 1997-98, the

1996 versions of §§ 2339A and 2339B apply to this case. See 18

U.S.C. §§ 2339A(a), 2339B(a)(1) (1996).

8

Plaintiffs allege that they were injured “by reason of”

BNPP’s material aid and support to al Qaeda in violation of

§§ 2339A and 2339B. In the alternative, Plaintiffs allege that

BNPP’s conduct “constituted aiding and abetting” al Qaeda’s

acts of international terrorism under the ATA. Am. Compl.

¶ 130.7

7

As the district court observed, “Plaintiffs’ complaint is not a

model of clarity.” Owens, 235 F. Supp. 3d at 91 n.5. In particular, it

is unclear whether the complaint alleges only that BNPP is liable as

a primary violator of § 2333 or if it also alleges BNPP is liable as an

aider and abettor of an ATA violation. While Plaintiffs use the

language of aiding and abetting liability, they never actually list a

claim for relief premised on civil aiding and abetting under § 2333.

Nevertheless, because the parties spent much of their briefing

debating the availability of aiding and abetting liability under § 2333,

the district court assumed that Plaintiffs asserted those claims. Id.

Plaintiffs continue to press for aiding and abetting liability. We

follow the district court and construe Plaintiffs’ complaint to include

the claim.

Additionally, Plaintiffs pepper their complaint with allegations

that BNPP “conspired” with Sudan to provide financial services to al

Qaeda. See, e.g., Am. Compl. ¶¶ 7, 8, 107, 110-11, 126. On appeal,

Plaintiffs continue to claim briefly that BNPP is liable pursuant to

principles of civil conspiracy. If civil conspiracy were available,

BNPP would be liable if (1) BNPP entered into an “agreement” with

Sudan and al Qaeda; (2) BNPP participated in an “unlawful act, or a

lawful act in an unlawful manner”; (3) Plaintiffs’ injuries were

caused by an “unlawful overt act performed by one of the parties to

the agreement”; and (4) the “overt act was done pursuant to and in

furtherance of the common scheme.” Halberstam v. Welch, 705 F.2d

472, 477 (D.C. Cir. 1983). However, as we discuss below, just as

Plaintiffs cannot pursue a theory of recovery based on aiding and

abetting liability under § 2333, they also cannot pursue one based on

conspiracy liability. See infra note 12.

9

After Plaintiffs filed their complaint, BNPP moved to

dismiss the suit, arguing that the complaint failed to state a

claim for which relief may be granted under the ATA. The

district court granted BNPP’s motion. See Owens v. BNP

Paribas S.A., 235 F. Supp. 3d 85, 100 (D.D.C. 2017). Plaintiffs

timely appealed.

II

The district court had jurisdiction under the ATA. See 18

U.S.C. § 2333(a) (granting any ATA claimant the right to sue

“in any appropriate district court of the United States”). We

have appellate jurisdiction under 28 U.S.C. § 1291.

We review de novo the district court’s order granting

BNPP’s motion to dismiss. See Hurd v. District of Columbia,

864 F.3d 671, 678 (D.C. Cir. 2017).

III

We first address whether Plaintiffs sufficiently allege that

BNPP is directly liable under the ATA. Recall that any ATA

claim requires that a U.S. national be injured “by reason of” an

act of international terrorism. Plaintiffs are all U.S. nationals

and we assume here that BNPP’s conduct violated the material-

support statutes and therefore constituted an act of international

terrorism. We focus only on whether Plaintiffs have

sufficiently alleged that they were injured “by reason of”

BNPP’s actions.

A

Our analysis of a motion to dismiss for failure to state a

claim follows a familiar process. “To survive a motion to

dismiss, a complaint must contain sufficient factual matter,

10

accepted as true, to ‘state a claim to relief that is plausible on

its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also

Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.

Cir. 2009). A complaint can establish a facially plausible claim

only if it sets forth “factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678.

In determining a complaint’s plausibility, we accept as true

all of the complaint’s factual allegations and draw all

reasonable inferences in favor of the plaintiffs. See City of

Harper Woods Emps.’ Ret. Sys. v. Olver, 589 F.3d 1292, 1298

(D.C. Cir. 2009); see also Atherton, 567 F.3d at 677. However,

we “need not accept inferences unsupported by facts or legal

conclusions cast in the form of factual allegations.” City of

Harper Woods, 589 F.3d at 1298. “Nor must we accept as true

the complaint’s factual allegations insofar as they contradict

exhibits to the complaint or matters subject to judicial notice.”

Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004). Public

records are subject to judicial notice on a motion to dismiss

when referred to in the complaint and integral to the plaintiff’s

claim. Id. at 965.

B

The district court held and Plaintiffs do not dispute that the

ATA’s “by reason of” language demands a showing of

proximate causation. See Owens, 235 F. Supp. 3d at 95-97;

Plaintiffs Br. 20; Reply Br. 7. To survive a motion to dismiss

for failure to state a claim, Plaintiffs must therefore plausibly

allege (1) that BNPP’s acts were “a ‘substantial factor’ in the

sequence of events” that led to their injuries and (2) that those

injuries “must have been ‘reasonably foreseeable or anticipated

as a natural consequence’ of” BNPP’s conduct. Owens v.

11

Republic of Sudan, 864 F.3d 751, 794 (D.C. Cir. 2017) (quoting

Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013)).8 The

only dispute is whether the factual allegations set forth in

Plaintiffs’ complaint meet this standard.

Plaintiffs contend BNPP’s knowing manipulation of

currency on behalf of Sudanese banks was a proximate cause

of the injuries they suffered in the embassy bombings.

Meanwhile, BNPP argues that the ATA’s “by reason of”

proximate causation requirement cannot be satisfied when a

defendant is alleged only to have transferred funds to a state

sponsor of terrorism that later supports a terrorist act.

8

After briefing and oral argument in this appeal, the Ninth

Circuit issued a decision interpreting the ATA’s “by reason of”

language. See Fields v. Twitter, Inc., 881 F.3d 739, 744-49 (9th Cir.

2018). The Ninth Circuit held that to establish proximate causation

under the ATA’s “by reason of” standard there must be “some direct

relation between the injury asserted and the injurious conduct

alleged.” Id. at 745 (quoting Holmes v. Sec. Inv’r Prot. Corp., 503

U.S. 258, 268 (1992)); see also id. at 749 (“A plaintiff must show at

least some direct relationship between the injuries that he or she

suffered and the defendant’s acts to bring a successful ATA claim.”).

The Ninth Circuit suggested that this direct-relation requirement

might represent a “higher” standard for proximate causation than the

two-prong formulation we adopted from Rothstein in Owens. See id.

at 744. We are not so sure. As we read Rothstein, the Second

Circuit’s discussion of proximate causation implies that requiring an

act to be “a substantial factor in the sequence of responsible

causation” likewise requires sufficient directness. See Rothstein, 708

F.3d at 91-92. Even the Ninth Circuit refers to Rothstein’s decision

to equate the substantial-factor requirement with a direct-relation

requirement. See Fields, 881 F.3d at 747 (discussing Rothstein’s

quotation of Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461

(2006), in which the Supreme Court stated that “the central question”

for proximate causation is “whether the alleged violation led directly

to the plaintiff’s injuries”).

12

We must first determine which factual allegations in

Plaintiffs’ complaint speak to BNPP’s conduct prior to the

1998 bombings. We must likewise determine whether

Plaintiffs’ inferences from those facts are reasonable, such that

they plausibly state a claim for relief. That is, we must

ultimately decide whether the factual allegations and

reasonable inferences from Plaintiffs’ complaint plausibly

allege that BNPP proximately caused the embassy bombings.

Regarding BNPP’s conduct, Plaintiffs’ complaint relies

almost entirely on the statement of facts that BNPP filed in

district court when it pleaded guilty in 2014 to violating various

U.S. sanctions.9 From these stipulated facts, Plaintiffs allege

that BNPP “move[d] large amounts of money throughout the

U.S. financial system on behalf of” Sudan and al Qaeda

“between 1997 up to and including August 7, 1998,” the date

of the embassy bombings. Am. Compl. ¶ 111; see also id. ¶ 86

(alleging that “starting from at least 1997” BNPP “became key

to allowing Sudan to sell oil through the United States banking

system, thereby allowing Sudan to raise money to buy arms and

supplies for” al Qaeda); id. ¶ 127 (alleging that beginning in

1997 BNPP provided “substantial banking services to

Sudanese banks and financial institutions controlled by Sudan

including moving billions of dollars through the United States

financial market”).

9

The complaint also briefly incorporates a stipulation by BNPP

in a consent order filed in the New York courts. See Am. Compl. ¶ 88

(quoting New York State Department of Financial Services Consent

Order: In re BNP Paribas, S.A. at 6-7 (June 30, 2014), J.A. 132-33).

However, the factual allegation drawn from the consent order is

virtually identical to one made in BNPP’s stipulated statement of

facts. See id. ¶ 90 (quoting Statement of Facts ¶ 23, J.A. 99).

13

Most of the facts to which BNPP stipulated in federal court

involved conduct after the embassy bombings, which have no

bearing on what actions “caused” the bombings. In fact, only

two stipulated facts repeated in the complaint occurred before

the embassy bombings. First, BNPP agreed to become the sole

“correspondent bank” in Europe for the Sudanese government,

meaning nearly all major Sudanese banks would have U.S.

dollar accounts with BNPP. Id. ¶ 82 (quoting Statement of

Facts ¶ 19, J.A. 96). Second, to disguise the true nature of

BNPP’s later transactions with Sudanese banks and to evade

U.S. sanctions, BNPP established relationships with

international “satellite banks.” Id. ¶ 90 (quoting Statement of

Facts ¶ 23, J.A. 99). Neither of these allegations speaks to

whether BNPP began moving Sudanese resources through the

U.S. financial system prior to the embassy bombings.

In alleging that transactions between BNPP and Sudan

began in 1997, Plaintiffs also rely on a blatant misinterpretation

of BNPP’s stipulations. Plaintiffs allege that BNPP admitted

that “in the months and years” following a 1997 decision to use

an unaffiliated bank in the United States (captioned in the

statement of facts as “U.S. Bank 1”) as its “principal means for

clearing U.S. dollar transactions” with sanctioned Sudanese

banks, its personnel were aware that BNPP was circumventing

U.S. sanctions. Id. ¶ 84; see also id. ¶ 85 (quoting Statement of

Facts ¶ 31, J.A. 103). But Plaintiffs misrepresent the timeline

established by BNPP’s stipulations. The decision to use U.S.

Bank 1 did not occur in 1997, as Plaintiffs claim. Rather, BNPP

admitted that it decided to use U.S. Bank 1 at a meeting that

took place shortly after BNPP entered into a Memorandum of

Understanding with federal and state authorities regarding

BNPP’s failure to comply with a federal anti-money-

laundering statute. See Statement of Facts ¶ 29, J.A. 102. BNPP

entered into that agreement in September 2004. Id. ¶ 28, J.A.

101-02. Establishing that BNPP processed U.S. dollars for

14

Sudan “in the months and years” after a decision made in 2004

does nothing to support the existence of banking transactions

between BNPP and Sudan before the 1998 embassy bombing.10

At bottom, Plaintiffs do not allege facts addressing directly

whether BNPP began to process funds for Sudan before the

embassy bombings.

That said, Plaintiffs’ failure to allege transactions between

BNPP and Sudan before the bombings does not end our

inquiry. We must also grant Plaintiffs “the benefit of all

reasonable inferences derived from the facts alleged,” Bregman

v. Perles, 747 F.3d 873, 875 (D.C. Cir. 2014), and will

therefore consider whether we can reasonably infer the

existence of transactions between BNPP and Sudan from the

well-pleaded facts that Plaintiffs do allege. We can. Plaintiffs

offer factual allegations establishing a general banking

relationship between BNPP and Sudan as early as 1997. See

Am. Compl. ¶ 82. Plaintiffs also plead facts showing that

before the bombings BNPP developed relationships with

“satellite banks” to “help disguise the true nature of

transactions with sanctioned Sudanese banks.” Id. ¶ 90

(quoting Statement of Facts ¶ 23, J.A. 99). Given these

accepted facts, we think it reasonable to infer that the banking

relationship between BNPP and Sudan that developed before

the bombings involved some form of financial services,

including BNPP’s processing of funds for Sudan.

10

Moreover, in a portion of the stipulated statement of facts

that Plaintiffs neglected to cite in their complaint, BNPP even

indicated that it only began processing funds for Sudan in 2000, long

after the embassy bombings. See Statement of Facts ¶ 19, J.A. 96

(“In addition to processing U.S. dollar transactions, in 2000,

BNPP . . . also developed a business in letters of credit for the

Sudanese banks.”).

15

“But even if the complaint’s well-pleaded facts” of a

banking relationship “give rise to a plausible inference” that

BNPP processed funds for Sudan before the bombings, “that

inference alone would not entitle [Plaintiffs] to relief.” Iqbal,

556 U.S. at 682. To establish a plausible claim for relief under

the ATA, Plaintiffs must plausibly allege proximate causation.

See Owens, 864 F.3d at 794. Among other requirements that

we need not address here, Plaintiffs must plausibly allege that

any inferred transactions between BNPP and Sudan were “a

‘substantial factor’ in the sequence of events that led to

[Plaintiffs’] injur[ies].” Id. (quoting Rothstein, 708 F.3d at

91).11

In addressing whether BNPP’s alleged conduct was a

“substantial factor” in producing Plaintiffs’ injuries, we are

guided by Rothstein, in which the Second Circuit confronted a

remarkably similar set of facts. The Second Circuit held that

another bank, UBS, could not be liable under the ATA for

merely converting funds into U.S. currency for Iran, another

state sponsor of terrorism. The plaintiffs there failed to plead

non-conclusory allegations of a “proximate causal relationship

between the cash transferred by UBS to Iran and the terrorist

attacks by H[e]zbollah and Hamas that injured plaintiffs.”

Rothstein, 708 F.3d at 97. The Rothstein plaintiffs had made

only general allegations that because Iran was a state sponsor

of terrorism, UBS knew the cash dollars it had processed for

Iran would be used by Hezbollah or Hamas. Id. But because

Iran “is a government, and as such it has many legitimate

11

Proximate causation also requires that Plaintiffs’ injuries

were “reasonably foreseeable or anticipated as a natural

consequence” of BNPP’s conduct. Owens, 864 F.3d at 794 (quoting

Rothstein, 708 F.3d at 91). Because we conclude that Plaintiffs’

complaint fails on “substantial factor” grounds, we need not address

reasonable foreseeability.

16

agencies, operations, and programs to fund,” the plaintiffs had

failed to adequately plead “that the moneys UBS transferred to

Iran were in fact sent to H[e]zbollah or Hamas or that Iran

would have been unable to fund the attacks by H[e]zbollah and

Hamas without the cash provided by UBS.” Id.

Rothstein correctly recognized that when a defendant is

more than one step removed from a terrorist act or

organization, plaintiffs suing under the ATA must allege some

facts demonstrating a substantial connection between the

defendant and terrorism. In Rothstein, the presence of an

independent intermediary, Iran, created a more attenuated

chain of causation connecting UBS to Hezbollah and Hamas

than one in which a supporter of terrorism provides funds

directly to a terrorist organization. See, e.g., Boim III, 549 F.3d

at 698 (holding that donors to Hamas could proximately cause

a Hamas victim’s death as “knowing contributors [who] would

have significantly enhanced the risk of terrorist acts and thus

the probability that the plaintiff’s decedent would be a victim”).

Furthermore, when an intermediary is a sovereign state

with “many legitimate agencies, operations, and programs to

fund,” the need for additional allegations supporting

substantiality is all the more acute. Rothstein, 708 F.3d at 97.

That an intermediating country is a state sponsor of terrorism

does not reduce the need for evidence of a substantial

connection between the defendant and a terrorist act or

organization. If Congress intended that “any provider of U.S.

currency to a state sponsor of terrorism would be strictly liable

for injuries subsequently caused by a terrorist organization

associated with that state,” it would have done so explicitly. Id.

at 96. For example, Congress found that money earmarked for

peaceful activities donated directly to a terrorist organization

nevertheless furthers the organization’s violent ends enough to

justify a prohibition on all financial support for such an

17

organization. See Holder v. Humanitarian Law Project, 561

U.S. 1, 29 (2010). But Congress made no similar findings with

regard to state sponsors of terrorism. See, e.g., Abecassis v.

Wyatt, 785 F. Supp. 2d 614, 642 (S.D. Tex. 2011); Rothstein v.

UBS AG, 772 F. Supp. 2d 511, 516 (S.D.N.Y. 2011). In fact,

Congress affirmatively chose to permit financial transactions

with state sponsors of terrorism, so long as the prospective

funder obtains a license from the Department of State. See 50

U.S.C. § 4605(j). Reading § 2333 to permit strict civil liability

for all such transactions with state sponsors of terrorism would

be inconsistent with Congress’s regulatory scheme.

In sum, in order to satisfy proximate causation under the

ATA, Plaintiffs’ complaint needs to adequately plead facts

alleging that BNPP substantially contributed to Plaintiffs’

injuries because the funds to Sudan “actually [were] transferred

to al Qaeda . . . and aided in” the embassy bombings. In re

Terrorist Attacks on Sept. 11, 2001, 714 F.3d 118, 124 (2d Cir.

2013). The complaint alleges that the Sudanese banks

transmitted the funds from BNPP directly to al Qaeda, see Am.

Compl. ¶¶ 8, 16, 110, and that these funds from BNPP were

necessary for al Qaeda to carry out the embassy bombings, see

id. ¶¶ 12-13, 16, 107. But as in Rothstein, “these are conclusory

allegations that do not meet Twombly’s plausibility standard

with respect to the need for a proximate causal relationship

between the cash transferred by [BNPP] to [Sudan] and the

terrorist attacks by [al Qaeda] that injured plaintiffs.”

Rothstein, 708 F.3d at 97. All told, “[w]e see no nonconclusory

allegation in the Complaint that plausibly shows that the

moneys [BNPP] transferred to [Sudan] were in fact sent to [al

Qaeda] or that [Sudan] would have been unable to fund the

attacks by [al Qaeda] without the cash provided by [BNPP].”

Id.

18

Plaintiffs’ complaint fails to plausibly allege that any

currency processed by BNPP for Sudan was either in fact sent

to al Qaeda or necessary for Sudan to fund the embassy

bombings. As such, Plaintiffs fail to adequately allege that they

were injured “by reason of” BNPP’s acts and cannot state a

claim for relief based on a theory of primary liability under the

ATA.

IV

We next address whether Plaintiffs can bring a claim of

aiding and abetting under the ATA. If aiding and abetting

liability were available under the ATA, BNPP would not need

to satisfy any of the ATA’s elements to be held liable for

Plaintiffs’ injuries. Instead, BNPP would be liable for al

Qaeda’s acts of international terrorism, so long as BNPP

“knowingly and substantially assist[ed] the principal violation”

of the ATA by al Qaeda and was “generally aware” of its role

as part of al Qaeda’s illegal activities when providing that

assistance. Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir.

1983); see also Justice Against Sponsors of Terrorism Act

(JASTA), Pub. L. No. 114-222, § 2(a)(5), 130 Stat. 852, 852

(2016) (describing Halberstam as the “leading case regarding

Federal civil aiding and abetting and conspiracy liability”).

Before 2016, the ATA made no explicit reference to aiding

and abetting liability. Then, in 2016, Congress enacted JASTA

to “provide civil litigants with the broadest possible basis . . .

to seek relief against [those] that have provided material

support, directly or indirectly, to foreign organizations or

persons that engage in terrorist activities against the United

States.” JASTA, § 2(b), 130 Stat. at 853. Specifically, Congress

maintained that it was “necessary to recognize the substantive

causes of action for aiding and abetting and conspiracy liability

under” the ATA. Id. § 2(a)(4), 130 Stat. at 852. JASTA

19

therefore amended § 2333 to expressly state that “liability

[under the ATA] may be asserted as to any person who aids

and abets, by knowingly providing substantial assistance” to an

act of international terrorism or “who conspires with” any

person committing such an act. Id. § 4(a), 130 Stat. at 854

(codified at 18 U.S.C. § 2333(d)(2)).

However, this amended version of § 2333 is inapplicable

to Plaintiffs’ present suit. JASTA’s provision for aiding and

abetting liability only applies to injuries arising “on or after

September 11, 2001.” JASTA § 7(2), 130 Stat. at 855. Because

Plaintiffs were injured in bombings that took place before this

effective date, they must instead rely on the pre-JASTA version

of § 2333.

In answering whether the pre-JASTA version of § 2333

incorporated aiding and abetting liability, we are guided by the

Supreme Court’s decision in Central Bank of Denver, N.A. v.

First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994).

Central Bank concerned § 10(b) of the Securities Exchange Act

of 1934, a provision that renders unlawful various manipulative

or deceptive acts made in connection with the purchase or sale

of securities. In the 1970s, the Supreme Court found an implied

private right of action in § 10(b). See Superintendent of Ins. of

N.Y. v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n.9 (1971).

Then, in Central Bank the Court held that private civil liability

under § 10(b) did not extend to those who only aided and

abetted a manipulative or deceptive practice. The Court’s

reasoning was simple: “If . . . Congress intended to impose

aiding and abetting liability, we presume it would have used

the words ‘aid’ and ‘abet’ in the statutory text. But it did not.”

Central Bank, 511 U.S. at 177. Because “Congress knew how

to impose aiding and abetting liability when it chose to do so,”

and “[b]ecause the text of § 10(b) does not prohibit aiding and

20

abetting,” courts “cannot amend the statute to create [that]

liability.” Id. at 176, 177, 191.

The key takeaway from Central Bank is that when

Congress creates a private cause of action, aiding and abetting

liability is not included in that cause of action unless Congress

speaks to it explicitly. This presumption against the inclusion

of aiding and abetting liability rests partially on the fact that

“Congress has not enacted a general civil aiding and abetting

statute,” id. at 182 (emphasis added), akin to the general

criminal aiding and abetting statute, see 18 U.S.C. § 2(a).

Therefore, when Congress enacts a statute providing for private

civil liability “there is no general presumption that the plaintiff

may also sue aiders and abettors.” Central Bank, 511 U.S. at

182. In the end, “it is not plausible to interpret the statutory

silence as tantamount to an implicit congressional intent to

impose . . . aiding and abetting liability.” Id. at 185.

So too with the ATA. As the Second and Seventh Circuits

correctly concluded, § 2333 does not allow for aiding and

abetting liability because that provision is “silent as to the

permissibility of aiding and abetting liability.” Rothstein, 708

F.3d at 97; see also Boim III, 549 F.3d at 689. Moreover, other

provisions in the ATA, such as § 2339A or § 2339B, clearly

create criminal liability for conduct that strongly resembles

aiding and abetting. See Boim III, 549 F.3d at 691-92.

Therefore, it is doubtful “that Congress, having included in the

ATA several express provisions with respect to aiding and

abetting in connection with the criminal provisions, can have

intended § 2333 to authorize civil liability for aiding and

abetting through its silence.” Rothstein, 708 F.3d at 98; see also

Central Bank, 511 U.S. at 184 (“The fact that Congress chose

to impose some forms of secondary liability, but not others,

indicates a deliberate congressional choice with which the

courts should not interfere.”).

21

Plaintiffs maintain that Congress’s 2016 passage of

JASTA confirms that § 2333 incorporated aiding and abetting

liability all along. We disagree. We generally presume that

congressional amendments make substantive changes to

existing law. See Ross v. Blake, 136 S. Ct. 1850, 1858 (2016)

(“When Congress amends legislation, courts must ‘presume it

intends [the change] to have real and substantial effect.’”

(quoting Stone v. INS, 514 U.S. 386, 397 (1995))). We cannot

“instead act[] as though the amendment . . . had not taken

place.” Id. That said, sometimes when Congress “adopts a new

clarifying law or rule, it does not necessarily follow that an

earlier version did not have the same meaning.” Baptist Mem’l

Hosp.-Golden Triangle v. Sebelius, 566 F.3d 226, 229 (D.C.

Cir. 2009).

JASTA does not indicate that Congress merely “clarified”

existing law when it amended § 2333. In fact, Congress itself

stated that its amendment in JASTA was “necessary to

recognize the substantive causes of action for aiding and

abetting and conspiracy liability under” the ATA. JASTA

§ 2(a)(4), 130 Stat. at 852 (emphasis added). If anything,

JASTA’s passage confirms that Congress knows how to

provide for aiding and abetting liability explicitly and that the

version of § 2333 in effect at the time of the embassy bombings

did not provide for that liability. At the very least, nothing in

JASTA shows with sufficient clarity that its amendment in

§ 4(a) merely clarified § 2333’s preexisting meaning.

Although Central Bank seems to resolve with ease the

availability of aiding and abetting liability, several courts in

older decisions have disregarded Central Bank’s applicability

to the ATA. For example, some courts have distinguished

Central Bank because it involved an implied cause of action in

the Securities Exchange Act of 1934, while the ATA provides

22

an express cause of action. See Boim I, 291 F.3d at 1019; Wultz

v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 55 (D.D.C.

2010); Linde v. Arab Bank, PLC, 384 F. Supp. 2d 571, 583

(E.D.N.Y. 2005).

But nothing in Central Bank’s analysis turned on the

implied character of § 10(b)’s cause of action, and the Court’s

reasoning applies to express causes of action as well. The Court

found that because Congress did not attach aiding and abetting

liability to express causes of action in other securities laws,

“Congress likely would not have attached aiding and abetting

liability to § 10(b) if it provided a private § 10(b) cause of

action.” Central Bank, 511 U.S. at 179. But why did the Court

conclude that Congress had not attached aiding and abetting

liability to the securities laws’ express causes of action in the

first place? Simple: The express causes of action were just as

silent as to aiding and abetting liability as § 10(b)’s implied

cause of action. In other words, the Court reasoned as a general

matter that a statute provides for aiding and abetting liability

only if expressly set out by Congress. Therefore, Central Bank

relied on a principle of statutory interpretation that applies

equally with respect to implied and express causes of action.

Courts have also sometimes premised aiding and abetting

liability under the ATA on legislative history that purportedly

expresses Congress’s “intent to cut off the flow of money to

terrorists at every point along the causal chain of violence.”

Boim I, 291 F.3d at 1021 (citing S. Rep. No. 102-342, at 22

(1992)). Apparently, refusing to impose liability on aiders and

abettors of terrorism would thwart that intent and conflict with

congressional understandings that the ATA “empowers victims

[of terrorism] with all the weapons available in civil litigation,”

and “accords victims of terrorism the remedies of American

tort law,” 137 Cong. Rec. S4,511 (daily ed. Apr. 16, 1991)

23

(statement of Sen. Grassley), including aiding and abetting

liability, see Wultz, 755 F. Supp. 2d at 56.

But these arguments overstate the role of legislative

history in statutory interpretation. Some think it is appropriate

to consult legislative history as “a way to understand the text”

of a statute, while others go further and tout legislative history

as a “more authentic . . . expression of legislators’ will” than

the statute’s text. In re Sinclair, 870 F.2d 1340, 1342-43 (7th

Cir. 1989). The former of these two uses is perhaps acceptable

but the latter is certainly not. While legislative history may help

discern the meaning of an otherwise ambiguous text, see

Milner v. Dep’t of the Navy, 562 U.S. 562, 572 (2011), it “may

not be used show an ‘intent’ at variance with the meaning of

the text,” Sinclair, 870 F.2d at 1344. Nor is any reference to

legislative history necessary “when the meaning of a statute is

clear enough on its face.” Owens, 864 F.3d at 777.

Section 2333 is not ambiguous, so no appeal to legislative

history is necessary or helpful here. As Central Bank teaches,

“the statutory text controls the definition of conduct covered

by” § 2333, and when the statutory text is silent there simply is

no “congressional intent to impose . . . aiding and abetting

liability.” 511 U.S. at 175, 185. In other words, when Congress

is silent as to aiding and abetting liability, it has unambiguously

foreclosed that theory of recovery. Given that § 2333 is silent

with respect to aiding and abetting liability, Plaintiffs’ appeals

to the ATA’s legislative history do not attempt to clarify the

meaning of any words that appear in § 2333. Instead, the

proffered legislative history is used to supplement the ATA’s

text and effectively “amend the statute to create liability” for

aiding and abetting terrorism. Id. at 177. This Central Bank

does not permit.

24

Central Bank’s reasoning is inescapable: Because the

ATA does not expressly provide for aiding and abetting

liability, such liability is unavailable. 12 Therefore, the ATA

does not allow for any of Plaintiffs’ claims against BNPP

premised on aiding and abetting liability, and the district court

rightly dismissed them.

V

We affirm the district court’s judgment.

So ordered.

12

The Court’s reasoning in Central Bank also forecloses

Plaintiffs’ appeal to civil conspiracy liability, given the absence of

an explicit congressional statement addressing it. See Central Bank,

511 U.S. at 200 n.12 (Stevens, J., dissenting) (stating that “[t]he

Court’s rationale would sweep away the decisions recognizing that a

defendant may be found liable in a private action for conspiring to

violate § 10(b)”); accord Kramer v. Perez, 595 F.3d 825, 830 (8th

Cir. 2010); Regents of the Univ. of Cal. v. Credit Suisse First Bos.

(USA), Inc., 482 F.3d 372, 392 (5th Cir. 2007); Dinsmore v.

Squadron, Ellenoff, Plesent, Sheinfeld & Sorkin, 135 F.3d 837, 841

(2d Cir. 1998); In re GlenFed, Inc. Sec. Litig., 60 F.3d 591, 592 (9th

Cir. 1995); cf. SEC v. Johnson, 650 F.3d 710, 714-15 (D.C. Cir.

2011) (indicating that Central Bank precludes a co-conspirator

theory of venue because there would be “no statutory basis for

venue”).