Petition for Writ of Certiorari — Dana Marie Bernhardt, Personally and as the Administratrix of the Estate of Jeremy Wise, et al., Petitioners v. HSBC Holdings PLC, et al.

No. ___

In the

Supreme Court of the United States

DANA MARIE BERNHARDT, INDIVIDUALLY AND

AS THE ADMINISTRATRIX OF THE ESTATE OF

JEREMY WISE, ETHAN PRUSINKSI, MARY LEE

WISE, MARY HEATHER WISE, MINDYLOU PARESI,

INDIVIDUALLY AND AS THE ADMINISTRATRIX

OF THE ESTATE OF DANE PARESI, ELIZABETH

SANTINA PARESI, ALEXANDRA VANDENBROEK,

JANET PARESI, TERRY PARESI AND

SANTINA CARTISSER

Petitioners,

v.

HSBC HOLDINGS PLC, HSBC BANK PLC,

HSBC BANK USA N.A. AND HSBC NORTH

AMERICA HOLDINGS, INC.

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the DC Circuit

PETITION FOR A WRIT OF CERTIORARI

Randy D. Singer

Counsel of Record

Rosalyn K. Singer

Kevin A. Hoffman

Singer Davis, LLC

1209 Laskin Road

Virginia Beach, VA 23451

(757) 301-9995

randy.singer@singerdavis.law

Counsel for Petitioners

319099

i

QUESTIONS PRESENTED

Under Section 2333 of the Anti-Terrorism Act, as

amended by the Justice Against Sponsors of Terrorism

Act (“JASTA”), U.S. nationals injured or killed by “an act

of international terrorism” that is “committed, planned, or

authorized by” a designated foreign terrorist organization

may sue any person who “aids and abets, by knowingly

providing substantial assistance, or who conspires with

the person who committed such an act of international

terrorism,” and recover treble damages. 18 U.S.C.

§ 2333(a), (d)(2). The questions presented in this case are:

1. Whether a foreign defendant who knowingly,

willfully, and illegally moved or permitted

billions of dollars to be moved through the

U.S. financial system on behalf of designated

and sanctioned banks is subject to Rule 4(k)(2)

personal jurisdiction for claims of aiding and

abetting an act of international terrorism that

arose out of the provision of such funds.

2. Under this Court’s analysis in Twitter, Inc. v.

Taamneh, 143 S. Ct. 1206 (2023), does HSBC’s

intentional provision of more than nineteen

billion dollars in illegal banking services to high

risk and sanctioned banks, with known ties to

al-Qaeda, support a JASTA cause of action for

sophisticated attacks committed by al-Qaeda

during the time of the illegal banking activities?

ii

PARTIES INVOLVED

The parties involved in this case are Respondents

HSBC Holdings PLC (“HSBC”), HSBC Bank PLC

(“HBEU”), HSBC Bank USA N.A. (“HBUS”), and HSBC

North America Holdings, Inc. (“HBNA”), who were the

appellees below, and Petitioners Dana Marie Bernhardt,

Individually, and as the Administratrix of The Estate of

Jeremy Wise, Ethan Prusinksi, Mary Lee Wise, Mary

Heather Wise, Mindylou Paresi, Individually, and as the

Administratrix Of The Estate Of Dane Paresi, Elizabeth

Santina Paresi, Alexandra Vandenbroek, Janet Paresi,

Terry Paresi, and Santina Cartisser (collectively referred

to as “Petitioners”), who were the appellants below.

The Islamic Republic of Iran (“Iran”) was also a

defendant before the trial court in this matter but is not

party to this appeal. See Fed. R. Civ. P. 54(b).

iii

RELATED PROCEEDINGS

Bernhardt v. Islamic Republic of Iran, et al., No. 217018, U.S. Court of Appeals for the District of Columbia

Circuit. Judgment entered September 6, 2022.

Bernhardt v. Islamic Republic of Iran, et al., No.

18-2739 (TJK), U.S. District Court for the District of

Columbia. Judgment entered March 22, 2023.

Bernhardt v. Islamic Republic of Iran, et al., No.

18-2739 (TJK), U.S. District Court for the District of

Columbia. Judgment entered November 16, 2020.

Bernhardt v. Islamic Republic of Iran, et al., No. 217018, U.S. Court of Appeals for the District of Columbia

Circuit. Judgment entered February 2, 2023.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE PETITION . . . . . 9

I.

THE D.C. CIRCUIT INCORRECTLY

DISMISSED HSBC AND HBEU FOR

LACK OF PERSONAL JURISDICTION

EVEN THOUGH HSBC ADMITTED

THAT ITS ACTIONS UNDERMINED

U.S. NATIONAL SECURITY . . . . . . . . . . . . . . 10

v

Table of Contents

Page

II. T H I S C A S E P R E S E N T S A N

OPPORTUNITY FOR THE COURT TO

DEFINE THE PARAMETERS OF JASTA

FOR A SOPHISTICATED TERRORIST

AT TACK A IDED A N D A BET T ED

BY DEF EN DA N T S ’ PR OV I DI NG

BILLIONS OF DOLLARS OF ILLEGAL

BANKING TRANSACTIONS TO HIGHRISK A ND SA NCTIONED BA NKS

WITH KNOWN TIES TO AL QAEDA . . . . . . 12

A. HSBC’s culpable conduct allowed

financial institutions with known ties to

al-Qaeda to process more than $19 billion

in illegal banking transactions . . . . . . . . . . 14

B. As a result of their culpable conduct,

Respondents should be liable for

a definable subset of sophisticated

terrorist attacks by al-Qaeda . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

vi

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLU M BI A CIRCUIT,

DATED SEPTEMBER 6, 2022 . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBI A ,

FILED MARCH 22, 2023 . . . . . . . . . . . . . . . . . . . . 49a

APPENDIX C — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBI A ,

FILED NOVEMBER 16, 2020 . . . . . . . . . . . . . . . . 99a

APPENDIX D — DENIAL OF REHEARING OF

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLU M BI A

CIRCUIT, DATED FEBRUARY 2, 2023 . . . . . . 122a

vii

TABLE OF CITED AUTHORITIES

Page

CASES

Atchley v. AstraZeneca UK Ltd.,

22 F.4th 204 (D.C. Cir. 2022) . . . . . . . . . . . . . . . . . . . . 8

Direct Sales Co. v. United States,

319 U.S. 703 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct.,

141 S. Ct. 1017 (2021) . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Kaplan v. Lebanese Canadian Bank, SAL,

999 F.3d 842 (2d Cir. 2021) . . . . . . . . . . . . . . . . . . 18. 19

Sekhar v. United States,

570 U.S. 729 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Twitter, Inc. v. Taamneh,

143 S. Ct. 1206 (2023) . . . . . . . . . . . . . 12, 13, 14, 17, 18,

19, 20,21, 22, 23, 26

Woods v. Barnette Bank of Ft. Lauderdale,

765 F.2d 1004 (11th Cir. 1985) . . . . . . . . . . . . . . . 20, 21

Woodward v. Metro Bank of Dallas,

522 F.2d 84 (5th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . 20

STATUTES AND OTHER AUTHORITIES

8 U.S.C. § 1189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

viii

Cited Authorities

Page

18 U.S.C. § 2333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Antiter ror ism Act of 1990: Hear ing on S.

2465 Before the Subcomm. on Courts and

Administrative Practice of the S. Judiciary

Comm., 101st Cong. 34 (1990) . . . . . . . . . . . . . . . . . . . 9

J. Goldberg, A. Sebok, and B. Zipursky, Tort

Law: Responsibilities and Redress 31 (2004) . . . . . 14

1

OPINIONS BELOW

The D.C. Circuit panel’s opinion (App.1a–48a) is

reported at 47 F.4th 856. The district court’s Memorandum

Opinion as to Iran, dated March 22, 2023 (App.49a–98a),

and Memorandum Opinion as to the HSBC defendants,

dated November 16, 2020 (App.99a–121a), are unreported.

The D.C. Circuit’s Denial of Rehearing En Banc, dated

February 2, 2023 (App.122a–123a), is also unreported.

JURISDICTION

The D.C. Circuit entered judgment on September 6,

2022. It then denied Petitioners’ request for rehearing en

banc on February 2, 2023. Chief Justice Roberts granted

Petitioners’ application to extend the time for filing a

petition for writ of certiorari, making the deadline fall on

Sunday, July 2, 2023. This Court has jurisdiction pursuant

to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 2333 provides in relevant part:

(a) Action and jurisdiction.—Any national of

the United States injured in his or her person,

property, or business by reason of an act of

international terrorism, or his or her estate,

survivors, or heirs, may sue therefor in any

appropriate district court of the United States

and shall recover threefold the damages he or

she sustains and the cost of the suit, including

attorney’s fees.

2

***

(d) Liability.—

(1) Definition.—In this subsection, the

term “person” has the meaning given

the term in section 1 of title 1.

(2) Liability.—In an action under

subsection (a) for an injury arising

from an act of international terrorism

committed, planned, or authorized

by an organization that had been

designated as a foreign terrorist

organization under section 219 of

the Immigration and Nationality

Act (8 U.S.C. 1189), as of the date

on which such act of international

terrorism was committed, planned, or

authorized, liability may be asserted

as to any person who aids and abets,

by knowingly providing substantial

assistance, or who conspires with the

person who committed such an act of

international terrorism.

STATEMENT OF THE CASE

1. Factual Background. In early 2009, Jordanian

intelligence officers arrested Humam Khalil al-Balawi

(“Balawi”), a Jordanian doctor, for jihadist content he

shared online. App.69a. After his arrest and interrogation,

Jordanian agents and their CIA counterparts concluded

that Balawi could become an informant for them and

3

infiltrate al-Qaeda’s network, a significant step in

the ongoing hunt for Osama bin Laden. App.50a–51a.

In furtherance of that plan, Balawi journeyed to the

mountains of northwest Pakistan in March of 2009, under

the guise of providing medical services to al-Qaeda and

its allies. App.69a; see Court of Appeals Joint Appendix,

hereinafter “CA JA,” 56 ¶ 213. In reality, Balawi instead

trained as a triple agent there, working against his

Jordanian handlers and the CIA, and with al-Qaeda, to

prepare for a terrorist attack against the Americans.

App.51a. The training camp there “existed, in large part,

through funding and material support provided by Iran.”

App.36a.

Over the next several months, Balawi reported to the

Jordanians and the CIA that he had infiltrated al-Qaeda’s

inner circle, including several of Osama bin Laden’s close

associates. CA JA 56–57 ¶¶ 214, 219. As bait, Balawi

first sent his Jordanian handler a video of Atiyah abd

al-Rahman, a wanted terrorist whose whereabouts had

evaded American intelligence officers for eight years.

CA JA 57 ¶¶ 216–20. Then, in November 2009, Balawi

informed his handlers that he was now the personal doctor

for Ayman al-Zawahiri, al-Qaeda’s second-in-command.

CA JA 58 ¶ 222.

Enthralled, the CIA quickly put together a plan to

meet Balawi at Camp Chapman. Id. ¶ 223. There, they

would supply him with technology needed to locate and kill

al-Zawahiri. Id. On December 30, 2009, an Afghan driver

working for the CIA picked up Balawi at the PakistanAfghanistan border. CA JA 60 ¶ 235. Upon arrival at Camp

Chapman, security waved Balawi through three levels

of checkpoints until he arrived before a team of sixteen

4

people waiting to debrief him. Id. ¶ 236. Dane Paresi

(“Paresi”) and Jeremy Wise (“Wise”) were among this

group and tasked with providing security for the meeting.

Id. They were both former military special ops veterans

and had voiced their disagreement with the decreased

security measures planned for the prior checkpoints. CA

JA 59 ¶ 228.

As Jeremy Wise stepped forward to open the car

door, Balawi slid across the seat to exit from the other

side of the vehicle. CA JA 60 ¶ 237. Noting that Balawi

had one hand hidden inside his clothing, Paresi and Wise

both raised their weapons, ordering Balawi to raise his

hands. Id. Upon realizing Balawi’s intention to detonate

a suicide bomb, Paresi and Wise rushed toward him. Id.

¶ 238. Before they could reach him, Balawi detonated

over thirty pounds of C-4 explosives, killing himself, the

decedents in this litigation, and seven others. App.50a, 67a.

The Camp Chapman attack was the culmination

of months of planning, directed by al-Qaeda’s former

“emissary” to Iran, Atiyah abd al-Rahman, enabled by

Iran’s provision of financing and sophisticated explosives,

and hatched in the northwest Pakistan training grounds

equipped and protected by Iran. The attack was not an

isolated event, but part of a broader terrorism strategy

whereby Iran provided funds and weapons to terrorist

groups like al-Qaeda to carry out attacks against

American interests.

2. Financing of the Camp Chapman Attack. There

is now no question as to Iran’s involvement in the

commission, planning, and authorization of the Camp

Chapman attack. Since the 1990s, “al-Qaeda has leveraged

5

Iran’s support . . . to help it carry out terrorism across

the globe,” App.52a, 94a, and Iran has historically served

as the “core pipeline through which [al Qaeda] move[d]

money, facilitators, and operatives.” App.52a. The Camp

Chapman suicide bombing was a “sophisticated attack

requiring a significant amount of time, money, and

logistics” to succeed. See App.37a. As the District Court

held in the adjacent litigation against Iran, decided

on March 22, 2023, Iran provided al-Qaeda with “the

ability to move funds internationally . . . and the funding

necessary to establish and maintain the communications

and execution of the [Camp Chapman] attack.” App.52a.

Thus, Iran’s aid to al-Qaeda and its allies constituted a

concrete and “definite connection to the attack on Camp

Chapman.” App.53a. Moreover, Iran’s channels of support

were “crucial ingredients of the Camp Chapman attack,”

because Balawi’s mission “relied on extensive financial,

material, and logistical assistance from Iran.” App.52a.

HSBC and its affiliates were one such channel of

support. In total, HSBC entities conducted $19.4 billion

in financial transactions with sanctioned Iranian national

banks, Bank Saderat and Bank Melli, and a Saudi bank,

Al Rajhi Bank, known for explicit connections to terrorism

and Al Qaeda. App.34a–35a. As the D.C. Circuit concluded

below, “[i]t cannot be disputed that the HSBC Defendants

knowingly assisted sanctioned entities Bank Melli and

Bank Saderat in evading U.S. sanctions and providing

Al Rajhi Bank with access to U.S. Banknotes despite its

knowledge of Al Rajhi Bank’s ties to al-Qaeda.” App.43a.

Bank Saderat is controlled by the Iranian Government

and has been censured by the United States as a

Specially Designated Global Terrorist for transferring

hundreds of millions of dollars to terrorist organizations.

6

App.34a; CA JA 34 ¶¶ 102–03. Likewise, Bank Melli is a

nationalized agency of the Iranian Government and has

been designated as a Specially Designated National and

Blocked Person for its support of Iranian-based terrorist

organizations. App.34a; CA JA 34 ¶ 107.

According to the 9/11 Commission, al-Qaeda relied

on a financial support network known as the “Golden

Chain,” benefactors primarily made up of financiers in

Saudia Arabia and the Persian Gulf. CA JA 36 ¶ 114.

Documents seized from al-Qaeda named these donors, and

the Treasury Department based their OFAC Designations

on this list. CA JA ¶¶ 115–17. Among those listed was

Sulaiman bin Abdulaziz Al Rajhi, the founder of Al Rajhi

Bank and former Chief Executive Office and Chairman of

the Board. CA JA 36 ¶ 118. Islamic extremists have used

Al Rajhi bank since the 1990s, and Al Rajhi also managed

accounts for many of al Qaeda’s charity fronts, including

advertising and soliciting donations for these charities

throughout the Muslim world. CA JA 36–37 ¶¶ 119–20, 122.

By 2 0 05, the HSBC Compliance Depar tment

terminated its relationship with Al Rajhi Bank due to

mounting evidence of Al Rajhi’s terrorism connections

from the Golden Chain document, 9/11 Commission

Reports, OFAC Designations, and scrutiny from U.S. Law

Enforcement. CA JA 37–38, 49 ¶¶ 122–23, 176–77. But

within a year, and despite evidence of Al Rajhi’s continuing

connections to terrorism and documented ties to al-Qaeda,

HSBC resumed its relationship with the Saudi bank. CA

JA 50 ¶ 178; App.36a. Between the years 2006 and 2010,

the critical timeframe for the Camp Chapman attack,

HBUS provided al Rajhi with nearly one billion worth

of bulk U.S. cash in a variety of physical currencies, a

7

business that HBUS called its “Banknotes” business. CA

JA 48 ¶ 167, 50 ¶ 182. But HBUS only purchased back $8

million in hard currency. CA JA 50 ¶ 182.

3. HSBC’s Malign Activities. In a national effort to

eliminate the threat of global terrorism following the

attacks of September 11, 2001, U.S. administrations

imposed a swathe of sanctions on banks and other

financiers of terrorist activities. The purpose of these

sanctions was to shut off the flow of hard currency and

financial transactions to terror organizations and was

primarily aimed at crippling Iran’s financial conduits and

its ongoing support of malign activities. The Department

of Justice pursued violations of these sanctions, including

violations by HSBC for its purposeful whitewashing of

more than 25,000 financial transactions to exclude any

mention of Iran. App.5a–6a. In 2012, after a series of

federal investigations, HSBC was found to have overseen

roughly 20 billion dollars’ worth of inappropriate

transactions with Iran through U.S. financial institutions,

and admitted that its actions had “undermined U.S.

national security, foreign policy, and other objectives of

U.S. sanctions programs.” App.6a.

4. Background of JASTA. To further its goal in a

complementary civil scheme, Congress passed JASTA

in 2016, with the intent of giving “full access to the court

system” to victims of terrorism. JASTA § 2(a)(7). JASTA

imposed both “direct and indirect” liability and was

intended to be liberally construed, providing litigants with

“the broadest possible basis . . . to seek relief.” Id. at § 2(b).

Despite JASTA’s intentionally broad construction, and

despite the shocking dollar amounts funneled by HSBC

through the sanctioned banks, the district court applied

8

a narrow interpretation of JASTA requiring Plaintiffs to

show that the HSBC Defendants had the specific intent of

advancing terrorist acts and that HSBC directly funded

al-Qaeda. App.108a, 114a–16a, 121a. On November 16,

2020, the district court dismissed the two foreign HSBC

affiliates1 for lack of personal jurisdiction and dismissed

Plaintiffs’ substantive claims against the two American

HSBC entities for failure to state a claim. App.99a–100a.

Although rejecting some of the trial court’s reasoning,

see App.25a, 28a, the D.C. Circuit upheld the lower court’s

outcome in a 2-1 majority opinion, with Judge Wilkins

dissenting in part. 2 Judge Wilkins argued that the panel’s

decision created confusion within the D.C. Circuit and

others, frustrated Congressional intent, and deprived

the plaintiffs of their right to present this case to a jury.

App.48a. Consistent with the concerns raised in his

dissent, Petitioners sought for rehearing en banc, which

was denied on February 2, 2023. App.122a–23a.

On March 22, 2023, the district court granted

Plaintiff’s Motion for Default Judgment against Iran in

the ongoing bifurcated litigation below, finding that “the

Camp Chapman Attack was a reasonably foreseeable

consequence of Iran’s support of al-Qaeda and its allies.”

App.79a.

1. Plaintiffs’ suit names as defendants four HSBCaffiliated entities—two based in the United States and two

foreign corporations. App.101a.

2. Judge Wilkins was part of the unanimous majority in

the D.C. Circuit’s previous case addressing some of these same

issues, which also has a petition for certiorari pending before

this Court. See Atchley v. AstraZeneca UK Ltd., 22 F.4th 204

(D.C. Cir. 2022).

9

REASONS FOR GRANTING THE PETITION

Money is the lifeblood of terrorism. 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) (the Antiterrorism Act, “by

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”). For that

reason alone, a significant percentage of anti-terrorism

cases involve the direct or indirect provision of financial

resources to terrorist organizations. And, as this Court

has now ruled, culpable conduct is the heart of a JASTA

aiding-and-abetting case. This case combines those two

elements—a complex financing scheme and culpable

conduct—presenting this Court with an opportunity to

address the contours of JASTA in the context of banks that

confessed to perpetuating a scheme designed to undercut

U.S. terrorism sanctions by dealing with sanctioned and

high-risk banks with known ties to al-Qaeda. Further,

the present case concerns one of the most sophisticated

and extensive plots in al-Qaeda’s history, resulting in

the deaths of nine individuals at a CIA base in northern

Afghanistan. Absent the Court’s ruling on this case, lower

courts will continue to apply diverse and inconsistent

standards to JASTA bank litigation, resulting in arbitrary

results for victims of terrorism and murky guidance for

international banks.

10

I.

THE D.C. CIRCUIT INCORRECTLY DISMISSED

HSBC AND HBEU FOR LACK OF PERSONAL

J U R I S D I C T I O N E V E N T H O U GH H S B C

ADMITTED THAT ITS ACTIONS UNDERMINED

U.S. NATIONAL SECURITY

Unlike the trial court below, the D.C. Circuit correctly

identified the principles articulated through this Court’s

ruling in Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141

S. Ct. 1017 (2021), by stating, for the purposes of personal

jurisdiction, that Petitioners need not allege either that

their damages were “caused” by HSBC and HSBU’s illegal

activities or that any “specific dollars” were used in the

Camp Chapman attack. App.14a (citing Ford Motor Co.,

141 S. Ct. at 1026). Instead, the D.C. Circuit clarified that

Petitioners must merely allege “some relation between

the sanctions evasion by the foreign defendants and the

injuries suffered in the terrorist attack.” Id.

However, despite correctly identifying the applicable

framework, the D.C. Circuit fell short in its analysis.

Its erroneous analysis hinged on the singularly crucial

statement that “Bernhardt does not allege that al-Qaeda’s

funding for terrorism depended on transactions with

specific foreign banks who would then work with HSBC

to evade U.S. sanctions.” Id. (emphasis added).

With this assertion, the D.C. Circuit effectively

replaced this Court’s standard with yet another causationrelated requirement for personal jurisdiction—namely,

that a plaintiff’s damages must have “depended on” the

alleged tortious acts. In fact, such a rule is essentially

the same as the Ford Motor Co. defendant’s proposed

test that was soundly rejected by this Court. 141 S. Ct.

11

at 1026 (defendant suggested in its briefing that personal

jurisdiction should attach “only if the defendant’s forum

conduct gave rise to the plaintiff ’s claims” (emphasis

in original)). Both “depended on” and “gave rise to” are

different ways of inserting a causation requirement into

a test that this Court has insisted it has “never framed .

. . as always requiring proof of causation.” Id. This Court

should reject this approach, just as it did in Ford Motor Co.

When determining whether Petitioners’ damages

relate to HSBC and HBEU’s conduct, this Court need

look no further than HSBC’s own admissions as quoted in

the First Amended Complaint. In a deferred prosecution

agreement, HSBC agreed that its sanctions evading

conduct “undermined U.S. national security, foreign

policy, and other objectives of U.S. sanctions programs.”

CA JA 55 ¶ 202. The head of HSBC’s own anti-money

laundering section termed these acts “as a deliberate

and calculated method to avoid US OFAC sanctions.”

CA JA 41 ¶ 140. The company’s head of compliance also

acknowledged that its behavior “could provide the basis for

an action against [HSBC] Group for breach of sanctions.”

CA JA 45 ¶ 157. Moreover, the entities for which these

transactions were being completed included Iranian banks

who were publicly designated for their financial support

of terrorism on behalf of Iran, a designated state sponsor

of terrorism. CA JA 33–35 ¶¶ 98–110.

The heart of Petitioners’ substantive allegations

are that HSBC and its affiliates actively and knowingly

participated in a long-standing terrorism-financing

enterprise that supported and increased al-Qaeda’s

ability to execute sophisticated terrorist attacks like the

Camp Chapman attack. Critical to this arrangement was

12

HSBC’s use of the American financial system. However,

the advantages of that financial system could not legally

be accessed for these purposes, so HSBC instructed its

employees to take a variety of actions to conceal the true

reason for and/or source of the banking transactions it

carried out for the benefit of known designated terrorism

sponsors. CA JA 40–43 ¶¶ 134–50. HSBC admits that

these acts of concealment, which were purposefully

directed at the United States, had a negative impact on

“U.S. national security.” CA JA 55 ¶ 202. Certainly, one

aspect of U.S. national security is the ability to protect

American personnel on American bases overseas. HSBC,

by its own admission, degraded that ability. Such a specific

relationship to Petitioners’ allegations is sufficient to

establish personal jurisdiction pursuant to Rule 4(k)(2).

II. THIS CASE PRESENTS AN OPPORTUNITY FOR

THE COURT TO DEFINE THE PARAMETERS

OF JA STA FOR A S OPH I ST ICAT ED

TERRORIST ATTACK AIDED AND ABETTED

BY DEFENDANTS’ PROVIDING BILLIONS

OF D OL L A R S OF I L L E G A L BA N K I NG

T R A N S AC T I O N S T O H I G H - R I S K A N D

SANCTIONED BANKS WITH KNOWN TIES TO

AL QAEDA

The D.C. Circuit’s decision in this case, decided prior

to Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023), is

at odds with this Court’s inaugural JASTA ruling in at

least two ways. First, the D.C. Circuit’s opinion failed

to adequately consider the lynchpin of this Court’s

aiding and abetting analysis—the culpable conduct of

the defendants. As a result, the Circuit Court failed to

apply this Court’s common-sense sliding-scale approach

13

to aiding and abetting—that less substantial assistance

is required in a case with greater scienter. And second,

the D.C. Circuit’s opinion failed to consider the possibility

raised by this Court—that a defendant’s conscious illegal

conduct over the course of more than a decade could give

rise to liability for “some definable subset of terrorist

acts.” Taamneh, 143 S. Ct. at 1228. Instead, the Circuit

Court required Plaintiffs to show that the intermediaries

involved in this case were so intertwined with al-Qaeda

that defendants would be responsible for all terrorist acts

of al-Qaeda. This all-or-nothing approach is not in line

with this Court’s analysis in Taamneh.

In Taamneh, this Court considered JASTA in

the context of a defendant whose conduct “rests less

on affirmative misconduct” and more on “passive

nonfeasance”—the alleged failure to stop ISIS from using

the Twitter platform. Id. at 1227. That was not enough

to impose aiding and abetting liability under §2333(d)(2),

liability which should be reserved for those defendants who

engage in “conscious, voluntary and culpable participation

in another’s wrongdoing.” Id. at 1223. The instant case has

no shortage of such culpable conduct. It therefore presents

an opportunity for this Court, for the first time, to define

the parameters of JASTA in the context of defendants

who have admitted to “conscious, voluntary and culpable”

violations of U.S. sanctions designed to stop the kind of

terrorist attacks directly at issue here.

14

A.

HSBC’s culpable conduct allowed financial

institutions with known ties to al-Qaeda to

process more than $19 billion in illegal banking

transactions.

In Taamneh, this Court noted that JASTA’s aiding

and abetting liability is premised on common law terms

that “‘brin[g] the old soil’ with them.” Id. at 1218 (quoting

Sekhar v. United States, 570 U.S. 729, 733 (2013)).

Thus, the phrase “aid[ing] and abet[ing], by knowingly

providing substantial assistance,” requires “some level

of blameworthiness” or culpable conduct. Id. at 1221.

“[O]ur legal system generally does not impose liability

for mere omissions, inactions, or non-feasance,” id. at

1220–21, “both criminal and tort law typically sanction

only ‘wrongful conduct,’ bad acts, and misfeasance, id.

(quoting J. Goldberg, A. Sebok, and B. Zipursky, Tort

Law: Responsibilities and Redress 31 (2004)). “For these

reasons, courts have long recognized the need to cabin

aiding-and-abetting liability to cases of truly culpable

conduct.” Id. at 1221.

Respondents’ conduct certainly qualifies. Beginning

in the 1990s, HBEU instituted a new practice through

which it solicited business from sanctioned and high-risk

financial institutions by helping those banned entities

illegally transact business in American markets. CA

JA 40 ¶ 135. HBEU told sanctioned clients to put secret

notes in the payment messages—including things like “do

not mention our name in NY” or “do not mention Iran.”

Id. ¶ 136. These notes would trigger bank employees to

whitewash the transactions so as not to draw attention

from American regulators. Id. ¶¶ 136–37.

15

In 2001, this practice was further refined, with HSBC

entities now directly instructing sanctioned customers

about how to better avoid regulatory detection. CA JA

42–43 ¶¶ 146–47. Respondents deceptively processed

billions of dollars-worth of banking transactions through

this scheme. CA JA 43 ¶ 149.

Around the same time, HBEU developed a second

method for helping its designated and sanctioned

customers illegally evade U.S. sanctions through the use

of bank-to-bank transfers known as “cover payments.” CA

JA 41–42 ¶¶ 138–42. HBEU would process these “cover

payments” between itself and HBUS without disclosing

that the funds actually originated from a sanctioned entity

in Iran. CA JA 42 ¶ 142; CA JA 45 ¶¶ 156–57.

HSBC and HBUS were well aware of these illegal

practices since at least 2000. CA JA 41–42 ¶¶ 140–44. Their

executives promoted the bank’s business with sanctioned

and high-risk customers because of the “significant

business opportunities” and “substantial untapped

potential” they had to offer. CA JA 45–46 ¶¶ 156–57.

HBUS actively participated in both the false payment

messages and the cover payment schemes despite viewing

them “as a deliberate and calculated method to avoid US

OFAC sanctions.” CA JA 41 ¶ 140. In November 2009,

HBUS intentionally turned off a verification step in the

OFAC filter for thirteen days, allowing it to bypass that

system altogether. CA JA 46 ¶ 159. HBNA was presented

with direct evidence of the ongoing illegal transactions

and did nothing to intervene. CA JA 54 ¶¶ 197–201.

HSBC and its affiliates’ reckless actions are all the

more shocking when viewed in the context of the widely-

16

known role of its illegal customers as terrorist financiers.

Three of those entities deserve special mention. Bank

Melli is an Iranian nationalized bank and a Specially

Designated National and Blocked Person. App.34a; CA

JA 34 ¶ 107. Bank Saderat is an Iranian nationalized bank

and a Specially Designated Global Terrorist. App.34a;

CA JA ¶ 102. Al Rajhi Bank is operated by individuals

known to “have long supported Islamic extremists” and

HSBC was aware that Al Rajhi Bank was widely used by

terrorist organizations, including al-Qaeda. App.7a; 43a.

Notwithstanding these concerns, in the four years prior to

the Camp Chapman attack, the HSBC affiliates provided

Al Rajhi Bank with nearly one billion dollars in hard U.S.

currency (a business known as “Banknotes”), making

money laundering for terrorist organizations easier. CA

JA 50 ¶ 182. These Banknotes were provided even though

HBUS’s own “Know Your Customer” database flagged

the Al Rajhi Bank founders for their known sponsorship

of terrorists. Id. ¶ 180.

Nor can Respondents claim that they were unaware

of the role these banks played in terrorist attacks. Bank

Saderat and Bank Melli were formally designated as

entities with ties to terrorism in 2007, but their intimate

connections to terrorists were well-known before those

designations. CA JA 33–35 ¶¶ 102–10. Al Rajhi Bank’s

connections to al-Qaeda and specifically the 9/11 attacks

were common knowledge within the financial sector by

March 2002. CA JA 49 ¶ 175. All this information was

readily available to Respondents when they designed,

maintained, and advanced their bootlegging schemes to

evade American financial sanctions in the decade leading

up to the Camp Chapman attack. Respondents also knew

that the purpose for implementing those sanctions was to

17

stem the flow of money to violent terrorist organizations,

thereby lessening the size and regularity of terrorist acts.

Id. ¶¶ 174–76. When HSBC and its affiliates volunteered to

help known terrorist financiers evade economic sanctions

designed to prevent terrorist financing, a jury could easily

infer that they had a general awareness of the role they

played in supporting violent terroristic acts.

None of this conduct is in question. Under a deferred

prosecution agreement with the Department of Justice,

HSBC and HBUS admitted that their illegal conduct

caused U.S. banks to process financial transactions that

would have otherwise been subject to increased scrutiny.

CA JA 54 ¶ 200. They also admitted to preventing

American banks from filing reports and recording

transactions in the manner required by U.S. law and

causing false information to be recorded. Id. ¶ 201.

Additionally, they admitted that this conduct “undermined

U.S. national security, foreign policy, and other objectives

of U.S. sanctions programs.” CA JA 55 ¶ 202.

Thus, in stark contrast to the defendants in Taamneh,

HSBC and its affiliates engaged in “truly culpable

conduct,” thus satisfying the common law’s requirement

that “some sort [of culpability] is necessary to justify

punishment of a secondary actor, lest mostly passive

actors like banks become liable for all of their customers’

crimes by virtue of carrying out routine transactions.”

143 S. Ct. at 1222 (internal quotation marks omitted).

Respondents were not passive actors. They designed,

implemented, and carried out a scheme for the sole

purpose of evading U.S. terrorism sanctions so they could

do business with sanctioned and high-risk banks with

known ties to al-Qaeda. Permitting JASTA liability to

18

attach here presents no risk of opening the floodgates of

litigation against passive banks, but does fit this Court’s

desire to “cabin aiding and abetting liability to cases of

truly culpable conduct.” Id. at 1221.

Granting certiorari in this case would also address a

split in the circuits caused by the failure of the court below

to apply the appropriate weight to the talisman of this

Court’s Taamneh ruling—the culpability of the defendant.

By contrast, the United States Court of Appeals for the

Second Circuit found a claim had been stated against

the Lebanese Canadian Bank (“LCB”) because of its

unusual and illegal transactions with certain customers

that had known ties to Hezbollah. See Kaplan v. Lebanese

Canadian Bank, SAL, 999 F.3d 842, 864 (2d Cir. 2021).

Though there was no specific connection between the

financial services provided and the specific terrorist act

that injured the plaintiffs, the Second Circuit emphasized

that the wire transactions and other services provided by

LCB to certain customers had violated regional banking

rules requiring banks to know their customers and

perform due diligence to keep from providing banking

services to terrorist organizations. Id. at 849. Importantly,

LCB gave the customers at issue special treatment,

exempting them from submitting documents that would

be filed with the Central Bank of Lebanon to report cash

deposits over $10,000. Id. Thus,

given that LCB’s special treatment of the

Customers allowed them to deposit large sums

in various accounts at different LCB branches

. . . without disclosing their source, thereby

circumventing sanctions imposed in order to

hinder terrorist activity, the [Second Amended

19

Complaint] adequately pleaded that LCB

knowingly gave the Customers assistance that

both aided Hizbollah and was qualitatively and

quantitatively substantial.

Id. at 866.

Though it predates Taamneh, the Second Circuit’s

ruling comports with this Court’s admonition that “‘[c]

ulpability of some sort is necessary to justify punishment

of a secondary actor.” Taamneh, 143 S. Ct. at 1222. But

the Kaplan court also honored this Court’s caution that

“aiding and abetting does not require the defendant to

have known all particulars of the primary actor’s plan.”

Id. at 1224 (internal quotation marks omitted). Indeed, “[a]

s Halberstam makes clear, people who aid and abet a tort

can be liable for other torts that were ‘a foreseeable risk’

of the intended tort.” Id. at 1225 (quoting Halberstam,

705 F.2d, at 488). And here, as the district court found

in this matter’s bifurcated litigation against Iran, “the

Camp Chapman Attack was a reasonably foreseeable

consequence of Iran’s support of al-Qaeda and its allies.”

App.79a.

In short, Respondents engaged in a decades-long

conspiracy to provide more than 25,000 illegal financial

transactions to Iranian banks that had been sanctioned

for supporting terrorists. In addition, HSBC and its

affiliates provided nearly a billion dollars in hard currency

to a Saudi bank with known and extensive ties to Al

Qaeda. Consistent with this Court’s decision in Taamneh,

these allegations of culpable conduct create an issue of

foreseeability for a jury.

20

B. A s a result of their culpable conduct ,

Respondents should be liable for a definable

subset of sophisticated terrorist attacks by

al-Qaeda.

In Taamneh, this Court established two “guideposts”

for analyzing liability under JASTA: the culpability of

the defendant and the nexus between the defendant’s

aid and the terrorist act. 143 S. Ct. at 1222. These “twin

requirements” “work[] in tandem, with a lesser showing of

one demanding a greater showing of the other.” Id. (citing

Woodward v. Metro Bank of Dallas, 522 F.2d 84, 97 (5th

Cir. 1975), Woods v. Barnette Bank of Ft. Lauderdale,

765 F.2d 1004, 1010 (11th Cir. 1985)). “In other words,

less substantial assistance requires more scienter before

a court could infer conscious and culpable assistance.” Id.

(citing Woodward, 522 F.2d at 97).

The appellate court decisions cited by this Court

emphasize the high level of scienter at issue in the

instant matter as compared to most other bank cases.

Both Woodward and Woods were securities fraud cases

against banks for aiding and abetting liability. In deciding

those cases, the Eleventh Circuit distinguished between

cases where the bank’s actions were common practices

for a bank, “the daily grist of the mill,” and those where

the bank’s actions were “atypical.” Woods, 765 F.2d at

1004 (quoting Woodward, 522 F.2d at 97). Thus, while

the bank in Woodward may have engaged in “sharp

dealing” by its silence at key points in the transaction,

it followed its normal and legal business practices and

would not be liable. Woodward, 522 F.2d at 100. The

bank in Woods, on the other hand, issued an atypical

letter of recommendation to assure another bank of the

21

underwriting firm’s trustworthy character. Though the

purpose of the letter was to “curry favor with the client,”

not to defraud investors, the circumstances of the letter

fell outside the daily grist of the mill and the bank was

found liable. Woods, 765 F.2d at 1012–13.

The same line of demarcation can be drawn in

terrorism cases, and Respondents are on the outer edges

of the culpability spectrum. Unlike the Google and Twitter

defendants recently before this Court, who provided

their platform of legal services “to the public writ large,”

143 S. Ct. at 1226, HSBC and its affiliates consciously

and illegally provided billions of dollars of services to

banks who were prohibited from receiving those services

precisely because they were known to finance terrorists.

Accordingly, under this Court’s analysis in Taamneh,

as well as the stated purpose of JASTA which calls for

accountability for both direct and indirect aid, “more

remote support” can suffice in cases like this. 143 S. Ct. at

1225. That is particularly true when the remote or indirect

support takes place over a substantial period of time (in

excess of ten years preceding the attacks) and constitutes

billions of dollars in transactions.

As the dissent noted below, the connection between

Respondents’ illegal schemes to avoid sanctions and alQaeda is strong. Two of the Iranian banks in question had

been sanctioned for financing terrorist activities, and yet

HSBC did business with them, willfully and fraudulently

hiding the origin of the transactions from American

regulators. A third bank, Al Rajhi bank, had extensive,

documented ties to al-Qaeda, including channeling

money to members of al-Qaeda that committed prior

22

terrorist attacks. Respondents knew of these connections

through their own “know your customer” database yet

provided Al Rajhi with a truly extraordinary amount of

“banknotes”3 —hard currency that could easily be used to

launder money and fund terrorist attacks. As this Court

noted, providing routine services in an unusual way or

providing dangerous wares may give rise to JASTA

liability. 143 S. Ct. at 1228. As an example, this Court cited

a prior opinion in a different context, Direct Sales Co. v.

United States, 319 U.S. 703, 707, 711–12, 714–15 (1943), in

which a registered morphine distributor was liable when it

legally mailed morphine far in excess of normal amounts

to a small-town physician. Id. Here, Respondents provided

hard currency, which can obviously be used to launder

funds, far in excess of normal amounts to Al Rajhi.

As the dissent noted, these atypical activities,

combined with Al Rajhi’s long-standing and well-known

support of al-Qaeda, should have been enough to satisfy

JASTA’s general awareness standard:

Undaunted by these allegations, the majority

maintains that even if the HSBC Defendants

were aware of these connections, the Plaintiffs

fail[] to allege that those connections were

so close that HSBC had to be aware it was

assuming a role in al-Qaeda’s terrorist activities

by working with Al Rajhi Bank.” Maj. Slip

Op. at 19. In the majority’s view, because Al

Rajhi Bank engaged in “extensive legitimate

3. HSBC funneled nearly $1 billion in U.S. Banknotes

to Al Rajhi Bank leading up to the Camp Chapman Attack.

App.44a.

23

operations,” the Plaintiffs had to allege “that

a substantial part of those operations involved

al-Qaeda” and that “Al Rajhi Bank was so

closely intertwined with al-Qaeda that we

can infer HSBC was aware it was assuming

a role in al-Qaeda’s terrorist activities simply

by doing business with Al Rajhi Bank.” Id.

at 20. The Plaintiffs alleged that “Al Rajhi

Bank advertised the existence and numerical

designation of the accounts it maintained

for [al-Qaeda-front charities] throughout the

Muslim world, providing a mechanism for alQaeda supporters to deposit funds directly

into those accounts.” Am. Compl. ¶120. The

majority therefore holds that a bank that

literally advertises how members of the public

can give money to al-Qaeda (and enables them

to do so) is not sufficiently “closely intertwined”

with al-Qaeda to satisfy the general awareness

requirement. The majority’s reasoning appears

to be that the HSBC defendants were only

generally aware that its customer, Al Rahji

Bank, supported al-Qaeda’s “legitimate”

charitable activities, rather than al-Qaeda’s

terrorism. As we have said in a different

context, “[t]his finding is quite extraordinary,

because it totally defies both logic and common

sense.”

App.41a–42a [internal citations omitted].

In light of HSBC’s culpable conduct, this “concrete

nexus” should be enough to impose liability for a “definable

subset of terrorist acts,” Taamneh, 143 S. Ct. at 1228,

24

based on the sophistication, timing, and expense of the

underlying acts.

As this Court noted, there may be some cases where

the aid provided by the defendant is so direct, active, and

substantial that the aider and abettor becomes liable for

all the attacks of the terrorist group. That need not be the

case here. Instead, in keeping with this Court’s “definable

subset” language, Respondents should be responsible

for those attacks of al-Qaeda that require large amounts

of funding, are concomitant with the period of time

during or immediately after HSBC’s illegal conduct, and

that require a level of sophistication and planning that

distinguish the attacks from those that can be carried out

by a small group of individuals on relatively little funding.

The mastermind of the Camp Chapman attack, Atiyah

Abd al-Rahman, served as al-Qaeda’s emissary in Iran

who worked directly with Iranian officials to deepen

strategic partnerships between Iran and al-Qaeda.

App.72a. These same partnerships provided the funding,

weapons, explosives, and training that allowed for the

successful execution of the elaborate Camp Chapman

attack. App.72a–74a.

Balawi trained for weeks prior to the Camp Chapman

attack at established joint training facilities in Pakistan.

App.69a. These facilities existed because of the funding

and support provided by Iran. App.74a. Iran served as

the “core pipeline” and “critical transit point” by which

al-Qaeda was able to move and receive money in this

area. Id. Indeed, the District Court in this case, after

considering Plaintiff’s evidence, concluded that the Camp

Chapman attack was a foreseeable consequence of Iran’s

25

support of al-Qaeda. App.79a. And the Respondents

“directly facilitated this process by providing Iran with

American currency and access to U.S. financial markets.

CA JA 61 ¶ 242.

Balawi’s suicide vest was produced by a top al-Qaeda

bomb maker, a man known as “al-Qaeda’s Tailor.” CA JA

59 ¶ 230. It was armed with C-4, a powerful military grade

plastic explosive that is more expensive and difficult to

obtain than the explosives commonly used in suicide vests.

CA JA 59–60 ¶¶ 232–33. The primary avenue for al-Qaeda

to acquire C-4 was through Iran. CA JA 60 ¶ 233.

The Camp Chapman attack, and its extensive preattack ruse, was among the most complex terrorist acts in

al-Qaeda’s history. CA JA 24 ¶ 53. Its successful execution

required highly sophisticated funding, coordination,

training, and materials. Each of those elements in turn

relied upon the ability of al-Qaeda and its financiers to

access and transfer the same vital resource—cash. CA

JA 24–25 ¶¶ 52–54. Respondents infused funds into alQaeda’s and Iran’s pipelines by facilitating their access

to physical currency easily laundered and used to equip,

train, and pay terrorist operators. CA JA 43 ¶ 150. This

infusion predictably and substantially enhanced alQaeda’s capacity to commit sophisticated attacks and

increased the devastation and lethality of those attacks.

See CA JA 24–25 ¶¶ 52–54. The Camp Chapman attack,

which occurred after a decade of Respondents’ illegal

transactions with Iranian national banks and after

providing a core al-Qaeda funding institution with nearly

a billion dollars of hard currency, is a prime example of

the type of sophisticated attack that was most directly

facilitated by HSBC and its affiliates’ financial misdeeds.

26

By cabining aiding and abetting conduct in this way—

through the requirement of conscious, culpable conduct

and through a nexus analysis that filters out all but the

most sophisticated and costly attacks during the time

period of the culpable conduct—this Court can avoid the

type of unlimited liability that “would run roughshod

over the typical limits on tort liability and take aiding and

abetting far beyond its essential culpability moorings.”

Taamneh, 143 S. Ct. at 1229. Respecting these appropriate

limits erected by this Court, Respondents should be held

accountable for their reprehensible and attack-enabling

conduct.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Randy D. Singer

Counsel of Record

Rosalyn K. Singer

Kevin A. Hoffman

Singer Davis, LLC

1209 Laskin Road

Virginia Beach, VA 23451

(757) 301-9995

randy.singer@singerdavis.law

Counsel for Petitioners

APPENDIX

i

TABLE OF APPENDICES

Page

Appendix A — opinion of the united

states court of appeals for the

district of colu m bi a circuit,

dated september 6, 2022 . . . . . . . . . . . . . . . . . 1a

Appendix B — MEMORANDUM opinion of

the united states DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA ,

FILED MARCH 22, 2023 . . . . . . . . . . . . . . . . . . . . 49a

APPENDIX C — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA ,

FILED NOVEMBER 16, 2020 . . . . . . . . . . . . . . . . 99a

APPENDIX D — DENIAL OF REHEARING OF

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBI A

CIRCUIT, DATED FEBRUARY 2, 2023 . . . . . . 122a

1a

Appendix A — Appendix

opinionAof the united

states court of appeals for the

district of columbia circuit, dated

september 6, 2022

United States Court of Appeals

for the District of Columbia Circuit

October 18, 2021, Argued;

September 6, 2022, Decided

No. 21-7018

DANA MARIE BERNHARDT, et al.,

Appellants,

v.

ISLAMIC REPUBLIC OF IRAN, et al.,

Appellees.

Appeal from the United States District Court

for the District of Columbia.

(No. 1:18-cv-02739).

Before: Wilk ins and R ao , Circuit Judges, and

Randolph, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Rao.

Opinion concurring in part and dissenting in part filed

by Circuit Judge Wilkins.

2a

Appendix A

RAO, Circuit Judge: An al-Qaeda suicide bomber

killed nine people at Camp Chapman, a secret CIA base in

Afghanistan. Dana Bernhardt and other family members

of the bombing victims (“Bernhardt”) sued HSBC

Holdings PLC and several of its foreign and domestic

affiliates under the Antiterrorism Act. Bernhardt alleges

that HSBC helped foreign banks evade U.S. sanctions and

thereby provided material support to al-Qaeda’s terrorist

activities. Bernhardt claims that HSBC is liable for aiding

and abetting and conspiring to bring about al-Qaeda’s

terrorist attack on Camp Chapman.

The district court dismissed the claims against the

foreign HSBC defendants for lack of personal jurisdiction

and dismissed Bernhardt’s aiding and abetting and

conspiracy claims for failure to state a claim. We affirm.

I.

A.

Bernhardt’s claims arise under the Antiterrorism Act

of 1990 (“ATA”), Pub. L. No. 101-519, 104 Stat. 2250, as

amended by the Justice Against Sponsors of Terrorism

Act (“JASTA”), Pub. L. No. 114-222, § 4, 130 Stat. 852,

854 (2016) (codified at 18 U.S.C. § 2333(d)). A plaintiff

injured by “an act of international terrorism committed,

planned, or authorized by” a designated foreign terrorist

organization can assert liability against those who aided

and abetted the act of terrorism, or who conspired with

the person who committed the act of terrorism. 18 U.S.C.

3a

Appendix A

§ 2333(d)(2).1 This liability extends to those who “provided

material support, directly or indirectly” to terrorists or

terrorist organizations. JASTA § 2(b), 130 Stat. at 853. 2

B.

Since Bernhardt appeals the district court’s dismissal

of her claims, “we accept as true all of the complaint’s

factual allegations and draw all reasonable inferences in

1. The full text provides:

In an action under subsection (a) for an injury arising

from an act of international terrorism committed,

planned, or authorized by an organization that had

been designated as a foreign terrorist organization

under section 219 of the Immigration and Nationality

Act (8 U.S.C. 1189), as of the date on which such act

of international terrorism was committed, planned,

or authorized, liability may be asserted as to any

person who aids and abets, by knowingly providing

substantial assistance, or who conspires with the

person who committed such an act of international

terrorism.

18 U.S.C. § 2333(d)(2).

2. JASTA substantially expanded civil remedies for victims of

international terrorism. Initially, the ATA created a civil cause of

action for the victims of international terrorism. See ATA, § 132(b),

104 Stat. at 2251 (codified as amended at 18 U.S.C. § 2333(a)). The

ATA established principal liability for defendants who proximately

caused a plaintiff’s injury, but not secondary liability for those who

facilitated or aided, yet did not themselves commit, terrorist acts.

Owens v. BNP Paribas, S.A., 897 F.3d 266, 270, 276-78, 437 U.S.

App. D.C. 413 (D.C. Cir. 2018).

4a

Appendix A

favor of the plaintiffs.” Owens v. BNP Paribas, S.A., 897

F.3d 266, 272, 437 U.S. App. D.C. 413 (D.C. Cir. 2018). The

following facts are drawn from the amended complaint

unless otherwise noted.

On December 30, 2009, al-Qaeda operative Humam

Khalil al-Balawi detonated more than thirty pounds of

C-4 explosives and shrapnel strapped to his chest shortly

after entering Camp Chapman, a secret CIA base in

Afghanistan. In the months leading up to the attack, Balawi

had been captured and agreed to infiltrate al-Qaeda and

become an informant for the CIA. The CIA planned to

meet with Balawi at Camp Chapman to strategize about

locating and killing al-Qaeda leadership. Unbeknownst to

the CIA, Balawi had continued his allegiance to al-Qaeda

and was feeding information to the CIA while training

to execute the attack. At the direction of al-Qaeda and

donning an al-Qaeda-made suicide vest, Balawi took the

lives of nine people at Camp Chapman, including private

security officers Dane Paresi and Jeremy Wise.

Paresi and Wise were survived by Dana Bernhardt

and the other plaintiffs, who sued under the ATA.

Bernhardt alleged that four HSBC-affiliated financial

institutions 3 (“HSBC”) violated U.S. sanctions and

3. The defendants include HSBC Holdings PLC (“HSBC

Holdings”), a company incorporated in the United Kingdom that

owns the U.K.-based HSBC Bank PLC (“HSBC Bank UK”) and

indirectly owns HSBC North American Holdings Inc. (“HSBC

Holdings NA”). HSBC Holdings NA indirectly owns and controls the

fourth defendant, the U.S.-based HSBC Bank USA, N.A. (“HSBC

Bank US”). Although Bernhardt also named the Islamic Republic

of Iran as a defendant, the claims against Iran are still pending

5a

Appendix A

thereby provided material support to al-Qaeda’s terrorist

activities. These sanctions restrict the flow of money to

individuals, entities, and countries on the Office of Foreign

Assets Control’s (“OFAC”) list of “specially designated

nationals and blocked persons.” The OFAC list includes

state sponsors of terrorism like Iran and “specially

designated global terrorists,” such as al-Qaeda. The

list also includes entities who finance terrorism-related

organizations.4 U.S. financial institutions must use this

“OFAC filter” to identify and block financial transactions

involving sanctioned parties. See Exec. Order No. 13,224,

§§ 1, 5-7, 66 Fed. Reg. 49,079, 49,079-81 (Sept. 25, 2001)

(authorizing the Department of the Treasury to regulate

and designate who should be sanctioned).

Bernhardt alleges that HSBC evaded the OFAC filter

beginning in the early 1990s and continuing through 2009.

HSBC Bank UK implemented procedures to help sanctioned

entities access and benefit from U.S. financial services. For

instance, such entities would include a “cautionary note” in

their transactions, such as “care sanctioned country,” “do

not mention our name in NY,” or “do not mention Iran.”

Based on these notes, HSBC Bank UK would manually

scrub all references to Iran or a sanctioned entity, which

would allow otherwise illegal transactions to pass through

to HSBC Bank US. This system allowed HSBC Bank US

to “process[] thousands of ‘repaired’ transactions worth

before the district court and therefore are not before us. See Fed.

R. Civ. P. 54(b).

4. See U.S. Dep’t of State, Terrorism Designations FAQs (Feb.

27, 2018), https://2017-2021.state.gov/terrorism-designations-faqs/

index.html.

6a

Appendix A

billions of dollars.” HSBC Bank UK would also use “cover

payments,” or bank-to-bank transfers, to avoid disclosing

the identity of its customers. Moreover, HSBC Holdings

and HSBC Bank US understaffed their compliance group

and failed to “conduct due diligence on HSBC affiliates.”

HSBC continued these practices, “mesmerized by the

potential profits.”

Facing a series of federal investigations, HSBC Bank

US hired an outside auditor, who discovered over 25,000

deceptive transactions involving Iran that moved more

than $19.4 billion through U.S. financial institutions.

HSBC Holdings eventually settled with the Department

of the Treasury for almost $900 million in penalties and

admitted it had processed over $164 million “for the

benefit of Iran and/or persons in Iran, through a financial

institution located in the United States in apparent

violation of [U.S. sanctions].”5 HSBC also admitted that its

actions had “undermined U.S. national security, foreign

policy, and other objectives of U.S. sanctions programs.”

In a separate deferred prosecution agreement with the

Department of Justice, HSBC Holdings and HSBC Bank

US agreed to forfeit over $1 billion dollars and admitted

that their conduct caused U.S. financial institutions “to

process payments that otherwise should have been held for

investigation, rejected, or blocked pursuant to sanctions

regulations administered by OFAC.”6

5. See U.S. Dep’t of the Treasury, Treasury Department

Reaches Landmark Settlement with HSBC (Dec. 11, 2012), https://

home.treasury.gov/news/press-releases/tg1799.

6. The deferred prosecution agreement focused on drug money

transfers but also mentioned the facilitation of terrorism. See U.S.

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According to Bernhardt, HSBC’s evasion of sanctions

benefitted several HSBC customers with terrorism ties:

Bank Melli, Bank Saderat, and Al Rajhi Bank. Bank

Melli, a bank operated and controlled by the government

of Iran, was placed on OFAC’s list for providing banking

services to groups in Iran’s military that supported

“terrorist organizations like Hezbollah and al-Qaeda.”

Bank Saderat is also an Iranian nationalized bank, listed

since 2007 as a specially designated global terrorist for

“facilitat[ing] Iran’s transfer of hundreds of millions of

dollars to Hezbollah and other terrorist organizations

each year.”

HSBC also did substantial business with Al Rajhi

Bank, “one of the largest banks in Saudi Arabia” with

over “500 branches and assets totaling $59 billion.” It

is primarily owned by the Al Rajhi family, one member

of which was a key financial contributor to al-Qaeda. In

2003, the CIA reported that “Islamic extremists have

used [Al Rajhi Bank] since at least the mid-1990s as a

conduit for terrorist transactions,” and “[s]enior Al Rajhi

family members have long supported Islamic extremists

and probably know that terrorists use their bank.” HSBC

Holdings ended its relationship with Al Rajhi Bank in 2005

due to Al Rajhi’s connections with the September 11 and

other terrorist attacks, but HSBC Bank US reestablished

relations a year later. A database that HSBC Bank US

Dep’t of Justice, HSBC Holdings Plc. and HSBC Bank USA N.A.

Admit to Anti-Money Laundering and Sanctions Violations (Dec.

11, 2012), https://www.justice.gov/opa/pr/hsbc-holdings-plc-andhsbc-bank-usa-na-admit-anti-money-laundering-and-sanctionsviolations.

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Appendix A

relied on for its due diligence “identified Al Rajhi Bank’s

most senior official as having links to terrorism.” HSBC

Bank US nonetheless provided “nearly one billion in US

dollars” to Al Rajhi Bank from 2006 to 2010 and “allowed

Al Rajhi Bank to raise funds and launder money for

terrorist organizations.” Al Rajhi Bank also oversaw the

accounts of al-Qaeda charity fronts.

In sum, Bernhardt maintains the Camp Chapman

bombing was orchestrated, authorized, and executed by

al-Qaeda, and that HSBC aided and abetted the attack

“by providing substantial assistance to al-Qaeda through

the countries, institutions, and entities that formed

part of a terrorism financing and support network.” In

addition, HSBC joined a “group of conspirators” providing

material support to a conspiracy between al-Qaeda, Iran,

and others aimed at harming the United States through

terrorist acts.

C.

The district court dismissed the suit. Bernhardt v.

Islamic Republic of Iran, No. 18-2739, 2020 U.S. Dist.

LEXIS 214185, 2020 WL 6743066 (D.D.C. Nov. 16, 2020).

It held there was no specific personal jurisdiction over the

foreign HSBC defendants because Bernhardt’s injuries

from the Camp Chapman bombing did not sufficiently

arise out of or relate to the evasion of sanctions. Bernhardt

failed to link HSBC’s financial malfeasance to al-Qaeda’s

suicide attack on Camp Chapman. The district court also

dismissed the ATA claims against HSBC for failure to

state a claim. As to aiding and abetting, Bernhardt had

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Appendix A

not adequately alleged that HSBC was “aware [it was]

supporting al-Qaeda, much less ‘assuming a role’ in alQaeda’s violent activities.” 2020 U.S. Dist. LEXIS 214185,

[WL] at *5. Because HSBC had no “direct relationship

with al-Qaeda or Balawi” and was merely “mesmerized by

the potential profits,” the court could not plausibly infer

the necessary substantial assistance either. 2020 U.S.

Dist. LEXIS 214185, [WL] at *6. The district court also

held that Bernhardt failed to state a claim for conspiracy.

Bernhardt had alleged at most that HSBC conspired to

evade the OFAC filter, not that it had conspired with alQaeda to perpetuate terrorist acts. Bernhardt appealed.

II.

We first consider whether the district court could

exercise personal jurisdiction over the foreign HSBC

defendants. A dismissal for lack of personal jurisdiction

is reviewed de novo. Atchley v. AstraZeneca UK Ltd., 22

F.4th 204, 214, 455 U.S. App. D.C. 228 (D.C. Cir. 2022).

Bernhardt alleges only specific personal jurisdiction

over the foreign HSBC defendants based on Federal Rule

of Civil Procedure 4(k)(2).7 Such jurisdiction requires: (1)

the defendant has either been served a summons or waived

service; (2) the claim “arises under federal law”; (3) “the

7. Bernhardt has not alleged general personal jurisdiction over

the foreign HSBC defendants, which would require demonstrating

that the defendants’ contacts “are so continuous and systematic as

to render them essentially at home in the forum State.” Goodyear

Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.

Ct. 2846, 180 L. Ed. 2d 796 (2011) (cleaned up).

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Appendix A

defendant is not subject to jurisdiction in any state’s courts

of general jurisdiction”; and (4) “exercising jurisdiction is

consistent with the United States Constitution and laws.”

Fed. R. Civ. P. 4(k)(2); see also Mwani v. bin Laden, 417

F.3d 1, 10, 368 U.S. App. D.C. 1 (D.C. Cir. 2005). The

parties do not dispute that the first three requirements are

met. HSBC Holdings and HSBC Bank UK were properly

served, Bernhardt’s claims arise under the ATA, and the

foreign HSBC defendants are not subject to any state

court’s jurisdiction. The only dispute is whether exercising

jurisdiction would be consistent with the Constitution,

namely whether the foreign HSBC defendants have

“sufficient contacts with the United States as a whole

to justify the exercise of personal jurisdiction under the

Due Process Clause of the Fifth Amendment.” Mwani,

417 F.3d at 11.

Pleading specific personal jurisdiction under Rule

4(k)(2) requires demonstrating a close nexus between the

United States, the foreign defendant’s conduct, and the

plaintiff’s claim. The plaintiff must show that the foreign

defendant “has purposefully directed his activities at

residents of the forum,” and that the alleged injuries

“arise out of or relate to those activities.” Id. at 12 (quoting

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105

S. Ct. 2174, 85 L. Ed. 2d 528 (1985)) (cleaned up); see also

Int’l Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S. Ct.

154, 90 L. Ed. 95 (1945). This test ensures that a district

court exercises specific personal jurisdiction only over

those foreign defendants who had “fair warning that a

particular activity may subject them” to U.S. jurisdiction.

Mwani, 417 F.3d at 11 (cleaned up). The Supreme Court

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recently explained it is not necessary to demonstrate

“a strict causal relationship between the defendant’s

[domestic] activity and the litigation.” Ford Motor Co. v.

Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1026, 209 L.

Ed. 2d 225 (2021). Because it is sufficient for the injuries to

“relate to” the defendant’s activities, “some relationships

will support jurisdiction without a causal showing.” Id.

(cleaned up).

Bernhardt alleges the foreign HSBC defendants

purposefully directed their conduct at U.S. markets by

coordinating with HSBC domestic affiliates to evade the

OFAC filter and to facilitate financial transactions in

violation of U.S. sanctions. We assume that was enough for

the first prong of the specific personal jurisdiction inquiry.

Bernhardt’s allegations do not, however, support

an inference that the injuries from the Camp Chapman

bombing arose out of or related to the foreign HSBC

defendants’ sanctions evasion. See Atchley, 22 F.4th at 233

(a plaintiff must allege a “relatedness between the contacts

and the claim”). As we further explain below, see infra

Part III.A, Bernhardt tries to connect the Camp Chapman

bombing to HSBC’s sanctions evasion on behalf of several

intermediary banks. For Banks Melli and Saderat,

Bernhardt primarily relies on their OFAC designations

and affiliation with Iran. The complaint alleges that

Bank Melli was listed as a specially designated national

and blocked person in October 2007 because it provided

“a variety of financial services” to a special division of

an Iranian military group “that promotes terrorism

abroad.” Bank Saderat was similarly listed as a specially

12a

Appendix A

designated global terrorist because of its “transfer of

hundreds of millions of dollars to Hezbollah and other

terrorist organizations each year.” These allegations show

possible connections between Banks Melli and Saderat and

terrorism generally, yet they are not enough to allow us

to infer the necessary connection to al-Qaeda specifically,

or that the foreign HSBC defendants’ conduct was related

to Bernhardt’s injuries at al-Qaeda’s hand.

The dissent tries to close this gap by emphasizing

the banks’ ties to Iran and Iran’s ties to al-Qaeda. See

Dissenting Op. 3. But neither Iran’s ownership of Bank

Melli and Bank Saderat nor the HSBC transactions

connected to Iran and its entities are enough to connect

HSBC’s conduct to Bernhardt’s injuries. We have made

clear in a similar context that “when an intermediary

is a sovereign state with many legitimate agencies,

operations, and programs,” the country’s designation as

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.” Owens,

897 F.3d at 276 (cleaned up). Pleading Iran’s involvement

does not support an inference that Bernhardt’s injuries

sufficiently related to HSBC’s conduct because aid to Iran

could just as plausibly benefit its otherwise legitimate

operations rather than al-Qaeda. 8

8. The dissent emphasizes that Ford treated ‘“isolated or

sporadic transactions differently from continuous ones’ for personal

jurisdiction purposes.” Dissenting Op. 3 (quoting 141 S. Ct. at 1028

n.4). But Ford did not hold that any pattern of repeated transactions

in the forum is sufficient to establish specific personal jurisdiction:

rather, the repeated transactions must also relate to the specific

13a

Appendix A

The allegations tying Al Rajhi Bank to al-Qaeda are

also insufficient. Bernhardt alleges that Al Rajhi Bank’s

founder was one of al-Qaeda’s key financial contributors

and that the bank maintained accounts for al-Qaeda’s

charity fronts. These connections show some connection

between Al Rajhi Bank and al-Qaeda. But the bank’s vast

and otherwise legitimate operations make it impossible

to infer that HSBC’s conduct was connected to al-Qaeda’s

attack on Camp Chapman through Al Rajhi Bank. And

as we explain below, Bernhardt fails to allege any aid

flowing indirectly through these intermediary banks to

al-Qaeda, further undercutting the necessary inference.

See infra Part III.A.2.

The allegations here thus stand in stark contrast to

those in Atchley, where we found personal jurisdiction

over foreign corporations. The defendants in that case

had allegedly provided goods to a terrorist group that had

overrun the Iraqi Ministry of Health, and the plaintiffs’

injuries directly related to the monetization of those goods

to promote acts of terrorism. 22 F.4th at 234-36; see also

id. at 237 (explaining that the goods “used to bribe Jaysh

al-Mahdi[] were an instrument to achieve the very wrong

alleged”) (cleaned up).

claim at issue. In other words, the relatedness inquiry under Ford

“does not mean anything goes.” 141 S. Ct. at 1026. “In the sphere of

specific jurisdiction, the phrase ‘relate to’ incorporates real limits,

as it must to adequately protect defendants foreign to a forum.” Id.

Such limits are necessary to preserve the distinction between specific

and general jurisdiction “since, as many a curbstone philosopher

has observed, everything is related to everything else.” Cal. Div.

of Lab. Standards Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S.

316, 335, 117 S. Ct. 832, 136 L. Ed. 2d 791 (Scalia, J., concurring).

14a

Appendix A

We agree with Bernhardt that she did not need

to allege the OFAC filter evasion caused the Camp

Chapman bombing. See Ford, 141 S. Ct. at 1026. Nor

was she required to identify specific dollars spent on

the terrorist attack.9 Nonetheless, she was required to

allege some relation between the sanctions evasion by

the foreign defendants and the injuries suffered in the

terrorist attack. But no such inference is supported by

the complaint. And without allegations supporting a closer

connection between the sanctions evasion and al-Qaeda’s

activities, allowing Bernhardt to sue the foreign HSBC

defendants would collapse the core distinction between

general and specific personal jurisdiction. See Ford, 141

S. Ct. at 1024-25.

The dissent speculates that if the foreign HSBC

defendants “had properly observed the sanctions ... it

would have significantly hindered al-Qaeda’s ability to

successfully carry out terrorist attacks like the Camp

Chapman bombing.” Dissenting Op. 5. Yet Bernhardt does

not allege that al-Qaeda’s funding for terrorism depended

on transactions with specific foreign banks who would

then work with HSBC to evade U.S. sanctions. The fact

that money is fungible works in both directions. Given

the allegations of al-Qaeda’s extensive access to foreign

banks, a more reasonable inference is that al-Qaeda could

9. The Supreme Court has recognized that “[m]oney is fungible”

and that foreign terrorist organizations “do not maintain legitimate

financial firewalls between those funds raised for civil, nonviolent

activities, and those ultimately used to support violent, terrorist

operations.” Holder v. Humanitarian L. Project, 561 U.S. 1, 31, 130

S. Ct. 2705, 177 L. Ed. 2d 355 (2010) (cleaned up).

15a

Appendix A

have secured terrorism funding from another avenue,

irrespective of whether HSBC evaded U.S. sanctions.

Certainly nothing in the complaint supports the dissent’s

conjecture.

Because it would exceed the limits of specific personal

jurisdiction to conclude the foreign HSBC defendants had

“fair warning” that evading the OFAC filter would subject

them to liability under the ATA for aiding and abetting

or conspiring with al-Qaeda to bomb a secret CIA base in

Afghanistan, Mwani, 417 F.3d at 12, we affirm the district

court’s dismissal of claims against the foreign HSBC

defendants for lack of personal jurisdiction.

III.

The district court also dismissed Bernhardt’s ATA

aiding and abetting and conspiracy claims against the

remaining HSBC defendants for failure to state a claim.

We review the district court’s dismissal de novo. Atchley,

22 F.4th at 214. Assuming the truth of Bernhardt’s

factual allegations, we consider whether she has stated

a “plausible claim”—that is, whether the allegations

lead to “the reasonable inference that the defendant is

liable for the misconduct alleged.” Owens, 897 F.3d at

272 (cleaned up). A plaintiff’s claim must rise “above the

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A claim

cannot survive a motion to dismiss if based on inferences

“unsupported by facts” or legal conclusions disguised as

factual allegations. Owens, 897 F.3d at 272 (cleaned up).

We affirm the dismissal of both claims.

16a

Appendix A

A.

To adequately plead an ATA aiding and abetting

claim, a plaintiff must allege: (1) “an injury arising from an

act of international terrorism”; (2) the act was “committed,

planned, or authorized by” a designated foreign terrorist

organization; and (3) the defendant “aid[ed] and abet[ted],

by knowingly providing substantial assistance” to an “act

of international terrorism. 18 U.S.C. § 2333(d)(2); see also

Atchley, 22 F.4th at 216. The parties do not dispute that

the Camp Chapman bombing was an act of international

terrorism; that Bernhardt and the other plaintiffs were

injured by the bombing; or that al-Qaeda, a designated

foreign terrorist organization, was responsible for the

attack.10 Therefore, we evaluate whether Bernhardt’s

allegations demonstrate that HSBC aided and abetted the

bombing by providing substantial assistance to al-Qaeda.

The ATA does not provide a definition of aiding and

abetting liability, but instead incorporates the analysis

in Halberstam v. Welch, 705 F.2d 472, 227 U.S. App.

D.C. 167 (D.C. Cir. 1983), as “provid[ing] the proper legal

framework for how such liability should function.” JASTA

§ 2(a)(5), 130 Stat. at 852. Halberstam stated that aiding

and abetting includes three elements: “(1) the party whom

the defendant aids must perform a wrongful act that causes

10. Although Balawi detonated the suicide vest, no one disputes

he was acting as an agent of al-Qaeda and that al-Qaeda is “the

person who committed” the Camp Chapman bombing. See Atchley,

22 F.4th at 217 (explaining that a foreign terrorist organization

often “stands behind the fighters who pull the trigger or detonate

the device”).

17a

Appendix A

an injury; (2) the defendant must be generally aware of

his role as part of an overall illegal or tortious activity

at the time that he provides the assistance; [and] (3) the

defendant must knowingly and substantially assist the

principal violation.” 705 F.2d at 477. It is undisputed that

the Camp Chapman bombing caused Bernhardt’s injuries.

We consider whether the allegations in the complaint allow

us to infer that HSBC was generally aware it played a role

in al-Qaeda’s terrorist activities and that HSBC knowingly

and substantially assisted those activities.

1.

In the ATA context, aiding and abetting liability

requires a defendant be “generally aware of its role in an

overall illegal activity from which an act of international

terrorism was a foreseeable risk.” Atchley, 22 F.4th at

220 (cleaned up). To allege that defendants had such

awareness, plaintiffs “must plead ... allegations of the

facts or events they claim give rise to an inference that

defendants acted with the requisite mental state.” Id. at

220-21 (cleaned up). Knowledge and other mental states

may be alleged generally but must at least support a

plausible inference of general awareness. See Ashcroft v.

Iqbal, 556 U.S. 662, 686-87, 129 S. Ct. 1937, 173 L. Ed. 2d

868 (2009) (citing Fed. R. Civ. P. 8, 9(b)). Because there is

rarely direct evidence of a defendant’s mental state, the

fact finder often must draw inferences from circumstantial

evidence.11 See Halberstam, 705 F.2d at 486 (inferring

11. We reject Bernhardt’s argument that “extreme recklessness”

satisfies the standard. Because actual awareness is required, the

inquiry is not whether a defendant should have been aware of its role.

18a

Appendix A

knowledge absent direct evidence because “it defie[d]

credulity that [the defendant] did not know that something

illegal was afoot”); see also Huddleston v. United States,

485 U.S. 681, 685, 108 S. Ct. 1496, 99 L. Ed. 2d 771 (1988)

(explaining that “[e]xtrinsic acts evidence may be critical

to the establishment of” a defendant’s mental state).

Bernhardt alleges HSBC aided and abetted the

Camp Chapman bombing through its relationship with

intermediary banks that facilitated al-Qaeda’s terrorist

activities. When a plaintiff’s ATA aiding and abetting

claim depends on aid flowing through an intermediary,

the general awareness requirement is satisfied if (1) the

defendant was aware of the intermediary’s connection

to the terrorist organization, and (2) the intermediary is

“so closely intertwined” with the terrorist organization’s

illegal activities as to give rise to an inference that

the defendant was generally aware of its role in the

organization’s terrorist activities.12 Honickman v. BLOM

Bank SAL, 6 F.4th 487, 501 (2d Cir. 2021).

Applying these standards, Bernhardt fails to plausibly

allege HSBC was generally aware that its financial

dealings with intermediary banks supported al-Qaeda’s

terrorist acts.

12. There is no requirement of specific intent, and a defendant

does not have to “wish[] to bring about” an act of terrorism or “kn[ow]

of the specific attacks at issue.” Linde v. Arab Bank, PLC, 882 F.3d

314, 329 (2d Cir. 2018); see also Atchley, 22 F.4th at 220. Contrary

to Bernhardt’s contentions, the district court applied the correct

standard and did not require a heightened standard of specific intent.

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Appendix A

With respect to Bank Melli and Bank Saderat,

Bernhardt alleges neither that HSBC was aware of

their connections to al-Qaeda nor that these banks were

so closely intertwined with al-Qaeda to infer HSBC’s

general awareness. The complaint focuses on the fact that

these banks were on OFAC’s list of sanctioned entities.

But that alone is insufficient. “[A]iding and abetting an

act of international terrorism requires more than the

provision of material support to a designated terrorist

organization.” Linde v. Arab Bank, PLC, 882 F.3d 314,

329 (2d Cir. 2018); see also Honickman, 6 F.4th at 49192, 501 (finding no general awareness despite defendant

bank having clients who were specially designated

global terrorists). According to the complaint, Bank

Melli was listed in 2007 for providing banking services

to a terrorist-affiliated group of Iran’s military. Bank

Saderat was designated for “facilitat[ing] Iran’s transfer

of hundreds of millions of dollars to Hezbollah and other

terrorist organizations.” These allegations connect the

intermediary banks to terrorism generally but fail to

support an inference that HSBC had general awareness

it was playing a role in al-Qaeda’s terrorist acts.13

Bernhardt also relies on the fact that Bank Melli and

Bank Saderat are nationalized Iranian banks and that

Iran has historically supported terrorist groups, including

13. For the same reasons, Bernhardt’s vague allegation that

HSBC Bank US “supplied U.S. dollars to ... Islami Bank Bangladesh

Ltd. and Social Islami Bank, despite evidence linking those banks

to terrorism” is not enough to connect HSBC to al-Qaeda. Nor is

the allegation of Al Rajhi Bank smuggling money to Chechnian

extremists relevant to HSBC’s al-Qaeda connections.

20a

Appendix A

al-Qaeda. But as explained above, sovereign nations

invariably maintain legitimate government activities.

Iran’s support for terrorism is not enough to demonstrate

HSBC’s general awareness that its transactions with

Iranian banks would support al-Qaeda’s terrorist acts

without some “additional allegations” more closely

connecting these intermediary banks to the “terrorist

act or organization.” Owens, 897 F.3d at 276.

Bernhardt’s allegations regarding Al Rajhi Bank come

closer to demonstrating general awareness but still fall

short. Bernhardt alleges that Al Rajhi Bank was founded

by a key financial contributor to al-Qaeda; “maintained

accounts for many of al-Qaeda’s charity fronts”; advertised

the existence of those accounts to provide al-Qaeda a

fundraising mechanism; and facilitated transactions for

terrorists who “provided the al-Qaeda cell of 9/11 hijackers

with financial and logistical support.” Bernhardt also

alleged that members of the Al Rajhi family were aware

their bank served as a conduit for al-Qaeda to move its

money around. Taken together, we can plausibly infer

that Al Rajhi Bank maintained connections to al-Qaeda.

Nevertheless, the complaint falls short because

Bernhardt does not allege that HSBC was aware of these

connections. The complaint states that an HSBC senior

manager in 2002 expressed concern that “Al Rajhi Bank’s

account may have been used by terrorists,” and that HSBC

Bank US in 2006 flagged “Al Rajhi Bank’s most senior

official as having links to terrorism.” These statements

are not sufficient to show HSBC’s awareness because they

express only the possibility of a terrorist connection, say

21a

Appendix A

nothing about al-Qaeda specifically, and focus on conduct

occurring years before the bombing. Therefore, they

cannot support the dissent’s inference that HSBC “had

actual knowledge” of any connection between Al Rajhi

Bank and al-Qaeda. Dissenting Op. 8.

Even if we could infer that HSBC was aware of Al

Rajhi Bank’s connections to al-Qaeda, Bernhardt fails to

allege that those connections were so close that HSBC had

to be aware it was assuming a role in al-Qaeda’s terrorist

activities by working with Al Rajhi Bank. See Honickman,

6 F.4th at 501; see also Siegel, 933 F.3d at 224 (explaining

that even when defendants were “aware that [Al Rajhi

Bank] was believed by some to have links to [al-Qaeda] and

other terrorist organizations,” plaintiffs still had to allege

defendants’ awareness that they were “assuming a role in

terrorist activities”) (cleaned up). As the complaint notes,

Al Rajhi Bank has substantial operations and “is one of

the largest banks in Saudi Arabia, with more than 8,400

employees, 500 branches and assets totaling $59 billion.”

Given the extensive legitimate operations of Al Rajhi

Bank—with assets totaling $59 billion—and the absence

of any allegation that a substantial part of these operations

involved al-Qaeda, “HSBC had little reason to suspect that

it was assuming a role in [al-Qaeda’s] terrorist activities.”

Siegel, 933 F.3d at 224; cf. Kemper v. Deutsche Bank AG,

911 F.3d 383, 390 (7th Cir. 2018) (“While giving fungible

dollars to a terrorist organization may be dangerous to

human life, doing business with companies and countries

that have significant legitimate operations is not

necessarily so. That these business dealings may violate

22a

Appendix A

U.S. sanctions does not convert them into terrorist acts.”)

(cleaned up). The pleadings do not adequately allege that

Al Rajhi Bank was so closely intertwined with al-Qaeda

that we can infer HSBC was aware it was assuming a role

in al-Qaeda’s terrorist activities simply by doing business

with Al Rajhi Bank.14

Bernhardt’s allegations also fall far short of what we

have previously found adequate in the ATA context. In

Atchley, for instance, the plaintiffs alleged the defendants

knew the Iraqi Ministry of Health was “notoriously

corrupt” and “under the control of a terrorist group.” 22

F.4th at 221. Aside from ubiquitous media reports, the

defendants finalized deals with the Ministry in offices

where “armed terrorist fighters circulated openly and

anyone who entered could see [the terrorist group’s]

distinctive flag, weapons, Sadr posters, and ‘Death to

America’ slogans on display.” Id. We inferred general

awareness by the defendants because the plaintiffs

plausibly alleged the Ministry was controlled by the

terrorist group and so closely intertwined with it that

they were effectively the same entity. Id. at 224.

14. This conclusion is not affected by the fact that Al Rajhi

Bank publicly advertised its connections to Al-Qaeda charity fronts.

Cf. Dissenting Op. 9. The question of HSBC’s general awareness

is context dependent and turns on the identity of Al Rajhi Bank

considered in the round. Bernhardt alleges some public connection

between Al Rajhi Bank and Al-Qaeda, but her allegations are not

sufficient to demonstrate that Al Rajhi Bank’s transactions with

Al-Qaeda were so pervasive that HSBC should have known that by

doing business with Al Rajhi Bank it was financing terrorism.

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Appendix A

Finding general awareness on the facts here would

mark an extension of aiding and abetting liability not

supported by the ATA or our precedent. The general

awareness element is particularly important in indirect

aiding and abetting claims to “avoid subjecting ... incidental

participants to harsh penalties or damages.” Halberstam,

705 F.2d at 485 n.14. Under the ATA, liability is cabined

to defendants who aid and abet “an act of international

terrorism.” 18 U.S.C. § 2333(d)(2). HSBC had client banks

with ties to terrorist organizations and has admitted to

helping those banks evade U.S. sanctions. But that is not

sufficient for aiding and abetting liability under the ATA.

While the amendments to the ATA expanded liability

for indirect aid to terrorism, they did not equate the

evasion of sanctions with terrorism liability.15 Bernhardt’s

allegations failed to make the necessary connection to

support an inference that HSBC was generally aware it

was playing a role in al-Qaeda’s terrorist activities.

2.

Bernhardt’s aiding and abetting claim also fails

because she did not plausibly allege that HSBC “knowingly

and substantially assist[ed] the principal violation.”

Halberstam, 705 F.2d at 477.

15. Under the dissent’s expansive interpretation, virtually any

bank that violates U.S. sanctions against an entity with some ties

to terrorism will be liable under the ATA for any subsequent acts

of terrorism. The government has already prosecuted HSBC for

evading sanctions in its transactions with banks having terrorist

ties. But simply alleging knowledge of a bank’s ties to terrorism is

not sufficient to make out liability under the ATA.

24a

Appendix A

The ATA states that a defendant “aids and abets” by

“knowingly providing substantial assistance.” 18 U.S.C.

§ 2333(d)(2) (emphasis added). There is significant overlap

between the requirement that the assistance be “knowing”

and the general awareness required by Halberstam. A

defendant who lacks general awareness cannot be said to

have knowingly assisted a foreign terrorist organization.

See Honickman, 6 F.4th at 500 (explaining that a defendant

need not “know anything more ... than what she knew for

the general awareness element”). Thus, having failed

to allege the requisite general awareness, Bernhardt’s

complaint also fails to allege knowing assistance. Because

HSBC’s assistance must be knowing and substantial, lack

of knowing assistance is sufficient to dismiss Bernhardt’s

claim.

It is an independent and alternative ground for

affirming the dismissal that Bernhardt also failed to

allege that HSBC provided “substantial assistance.” Six

factors are relevant in determining substantiality: (1)

“the nature of the act encouraged”; (2) “the amount and

kind of assistance given”; (3) “the defendant’s absence

or presence at the time of the tort”; (4) the defendant’s

“relationship to the tortious actor”; (5) “the defendant’s

state of mind”; and (6) the “length of time an alleged

aider-abettor has been involved.” Halberstam, 705 F.2d at

483-84 (cleaned up); see also Atchley, 22 F.4th at 221. “No

factor alone is dispositive, and the weight of each varies

with the circumstances of the particular claim. What is

required is that, on balance, the relevant considerations

show that defendants substantially assisted the acts of

terrorism.” Atchley, 22 F.4th at 221. Taken together,

25a

Appendix A

these factors lead us to conclude that Bernhardt failed

to adequately plead that HSBC substantially assisted

al-Qaeda’s terrorist acts.

The first factor identifies the “nature of the act

encouraged” and “dictates what aid might matter.”

Halberstam, 705 F.2d at 483, 484. Greater access to

capital—the alleged aid—is important to al-Qaeda’s

terrorist efforts, which depend on depositing, transferring,

and expending money. See Gonzalez v. Google LLC, 2 F.4th

871, 905 (9th Cir. 2021) (“Financial support is indisputably

important to the operation of a terrorist organization,

and any money provided to the organization may aid its

unlawful goals.”) (cleaned up). This factor weighs in favor

of finding substantial assistance.

The second factor is “significant” and requires

considering the quantity and quality of aid. Halberstam,

705 F.2d at 484. A plaintiff need not allege that a defendant

assisted a foreign terrorist organization directly. See

JASTA § 2(b), 130 Stat. at 853; Atchley, 22 F.4th at 225

(“The statute imposes no directness requirement.”). It

is enough to provide “[f]actual allegations that permit a

reasonable inference that the defendant recognized the

money it transferred to its customers would be received

by the [foreign terrorist organization].” Honickman, 6

F.4th at 500. The district court thus erred in requiring

Bernhardt to allege that assistance was directed to

the Camp Chapman attack or that HSBC was involved

in transactions that directly benefitted al-Qaeda. See

Bernhardt, 2020 U.S. Dist. LEXIS 214185, 2020 WL

6743066, at *6.

26a

Appendix A

The district court’s error was harmless, however,

because even applying the correct standard, the aid was

not significant. Bernhardt alleged that HSBC facilitated

over $19 billion in transactions with Iranian institutions

and provided almost $1 billion in currency sales to Al

Rajhi Bank. Yet she fails to allege how much (if any) of

that money indirectly flowed to al-Qaeda. Cf. Siegel, 933

F.3d at 225 (although plaintiffs alleged the provision of

“hundreds of millions of dollars” to an intermediary,

“they did not advance any non-conclusory allegation that

[al-Qaeda] received any of those funds”); Gonzalez, 2 F.4th

at 907 (explaining that the substantiality of assistance

is indeterminable when a complaint is “devoid of any

allegations about how much assistance [the defendant]

provided”). In light of Bernhardt’s failure to allege a close

connection between the foreign banks and al-Qaeda, we

cannot reasonably infer that HSBC provided any aid to

al-Qaeda.16 This factor thus severely undermines a finding

of substantiality.

16. We are in accord with the dissent regarding the proper

legal standard, although we disagree about whether Bernhardt’s

allegations were sufficient. See Dissenting Op. 11 (citing Honickman).

Bernhardt had to allege “[f]actual allegations that permit a reasonable

inference” that the “money ... transferred to [an intermediary] would

be received by” al-Qaeda. Honickman, 6 F.4th at 500; see also 18

U.S.C. § 2333(d)(2) (requiring a plaintiff to show a defendant, in

fact, “provid[ed] substantial assistance” to a terrorist organization).

“[A]lleg[ing] the general awareness element” can support that

inference, but only if a plaintiff alleges that the intermediary was

“so closely intertwined” with a terrorist organization that doing

business with one was like doing business with the other. Honickman,

6 F.4th at 499, 500. Bernhardt has not alleged this closeness or any

other form of aid “received by” al-Qaeda, and thus this factor weighs

against Bernhardt.

27a

Appendix A

The third factor looks at the defendant’s presence at

the time of the plaintiff’s injury. Halberstam focused on

a person’s physical presence in the murder and burglary

context. See Halberstam, 705 F.2d at 488. HSBC was

not physically present at the terrorist attack on Camp

Chapman, which may be sufficient for this factor to weigh

against Bernhardt. See Atchley, 22 F.4th at 223.

Other courts, however, have read Halberstam’s

presence requirement more broadly in light of the

ATA’s context, which attaches liability to all “persons,”

including “corporations, companies, associations, firms,

partnerships, societies, and joint stock companies.” 18

U.S.C. § 2333(d)(1); 1 U.S.C. § 1. These entities cannot be

physically present for an act of international terrorism,

and so presence may be understood in a transactional

sense, such as a bank’s business relations with a terrorist

organization. See Siegel, 933 F.3d at 225 (finding

“presence” to cut against liability when the defendant

banks had cut ties with the intermediary bank ten

months before the relevant terrorist attack). Even from a

transactional perspective, however, we are unable to infer

from Bernhardt’s complaint any HSBC involvement with

al-Qaeda before and leading up to the Camp Chapman

bombing.

The fourth factor considers the closeness of any

relationship between the defendant and the terrorist

organization. Bernhardt does not allege a connection

between the foreign banks and al-Qaeda sufficient to infer

any relationship, much less a close one, between HSBC

and al-Qaeda. Cf. Brill v. Chevron Corp., 804 F. App’x 630,

28a

Appendix A

632 (9th Cir. 2020) (per curiam) (no relationship where

Chevron had only “a contractual relationship with a third

party that sold Iraqi crude oil on the open market,” but did

not know “its kickbacks would be used to provide financial

support to the terrorist organization perpetrating the

terrorist activity in Israel”). This factor also cuts against

finding substantiality.

The fifth factor looks to the defendant’s state of mind,

which requires “[k]nowledge of one’s own actions and

general awareness of their foreseeable results.” Atchley,

22 F.4th at 223. While “this factor more powerfully

supports aiding-and-abetting liability of defendants who

share the same goals as the principal or specifically intend

the principal’s tort, ... such intent is not required.” Id. The

district court thus erred in requiring Bernhardt to show

that HSBC and al-Qaeda were “one in spirit.” Bernhardt,

2020 U.S. Dist. LEXIS 214185, 2020 WL 6743066, at *6;

see also Atchley, 22 F.4th at 223-224 (explaining that a

specific intent or “one in spirit” requirement is contrary

to Halberstam). Even applying the correct standard,

however, this factor cuts against Bernhardt because, as

already discussed, Bernhardt fails to allege that HSBC

provided knowing assistance or was generally aware that

acts of terrorism were the foreseeable result of its actions.

The final factor looks to the duration of a defendant’s

assistance, which can influence the quality and quantity

of aid and “may afford evidence of the defendant’s state

of mind.” Halberstam, 705 F.2d at 484. Bernhardt alleges

a years-long relationship between HSBC and the foreign

banks. But a lengthy financial relationship does not

terrorism assistance make. Cf. Siegel, 933 F.3d at 225.

29a

Appendix A

Because the foreign banks are global financial institutions

with legitimate operations and uncertain ties to al-Qaeda,

we cannot infer substantial assistance to al-Qaeda from

HSBC’s lengthy business relationships with the foreign

banks.

Considering the relevant factors, only the type of

monetary aid alleged supports Bernhardt’s claims, and

therefore, “on balance,” Bernhardt did not adequately

plead that HSBC substantially assisted al-Qaeda’s

terrorist acts. Atchley, 22 F.4th at 221.

***

While Bernhardt alleges financial wrongdoing and

serious violations of U.S. sanctions, she fails to plausibly

allege that HSBC was generally aware of its role in, or

knowingly and substantially assisted, al-Qaeda’s overall

terrorist activities. We therefore affirm the district court’s

dismissal of Bernhardt’s aiding and abetting claim.

B.

We next analyze the sufficiency of Bernhardt’s ATA

conspiracy claim. To plead a civil conspiracy, a plaintiff

must allege: “(1) an agreement between two or more

persons; (2) to participate in an unlawful act”; “(3) an

injury caused by an unlawful overt act performed by one of

the parties to the agreement; (4) which overt act was done

pursuant to and in furtherance of the common scheme.”

Halberstam, 705 F.2d at 477. Bernhardt’s conspiracy claim

fails because she has not adequately alleged an agreement

between HSBC and al-Qaeda, nor a relevant overt act.

30a

Appendix A

An “agreement” in the context of an ATA conspiracy

requires that the defendant “conspire[] with the person

who committed” the terrorist act. 18 U.S.C. § 2333(d)

(2). Therefore, Bernhardt had to allege that HSBC was

“pursuing the same object” as al-Qaeda. Halberstam, 705

F.2d at 487; cf. United States v. Tarantino, 846 F.2d 1384,

1392, 269 U.S. App. D.C. 398 (D.C. Cir. 1988) (proving a

conspiracy requires evidence “each conspirator had the

specific intent to further the common unlawful objective”).

The shared objective can be “inferred from circumstantial

evidence,” but the inference must still “reveal[] a common

intent.” Halberstam, 705 F.2d at 480.

Bernhardt alleges no common objective between

HSBC and al-Qaeda. The complaint states that HSBC

was trying to make “substantial profits” by evading

sanctions, whereas al-Qaeda sought to “terrorize the

U.S. into retreating from the world stage”; “use long

wars to financially bleed the U.S. while inflaming antiAmerican sentiment”; “defend the rights of Muslims”;

and “obtain global domination through a violent Islamic

caliphate.” These objectives are wholly orthogonal to

one another. Bernhardt’s allegations similarly do not

support an inference that HSBC evaded sanctions with

the object of funding terrorism. In the absence of any

alleged concordance between HSBC’s and al-Qaeda’s

objectives, Bernhardt’s conspiracy claim is inadequate.

Cf. Gonzalez, 2 F.4th at 881-82, 907 (rejecting conspiracy

claim absent allegations that “Google tacitly agreed to

commit homicidal terrorist acts with ISIS”).

Bernhardt also fails to allege an overt act in

furtherance of a conspiracy. Under the ATA, the overt act

31a

Appendix A

must be the act of international terrorism that injures the

plaintiff. See 18 U.S.C. § 2333(d)(2) (providing a cause of

action “for an injury arising from an act of international

terrorism”); Halberstam, 705 F.2d at 477 (explaining that

civil conspiracy liability requires “an unlawful overt act”

to have “produced an injury and damages”). Bernhardt’s

injury arose from the Camp Chapman bombing, and

therefore Bernhardt had to allege the bombing was the

overt act that furthered a conspiracy between HSBC and

al-Qaeda. But Bernhardt makes no such allegation, nor is

it plausible to infer that an attack on a secret CIA base in

Afghanistan would further HSBC’s alleged objective of

maximizing profits through the evasion of U.S. sanctions.

Cf. Adams v. Alcolac, Inc., 974 F.3d 540, 545-46 (5th Cir.

2020) (per curiam) (plaintiffs failed to allege a conspiracy

where the overt act—the use of mustard gas—was not

done in furtherance of a broader conspiracy to evade U.S.

export controls for a profit motive). Instead, Bernhardt’s

complaint consistently identifies HSBC’s sanctions evasion

as the relevant overt acts. That conduct is not, however,

an overt act of international terrorism or the source of

Bernhardt’s injury under the ATA.

Because Bernhardt fails to allege an agreement

between HSBC and al-Qaeda or an overt act in furtherance

thereof, we affirm the dismissal of Bernhardt’s ATA

conspiracy claim.17

17. Bernhardt’s arguments that a jury should have the

opportunity to identify single or multiple conspiracies is beside the

point. The burden of pleading a plausible conspiracy rests squarely on

Bernhardt, and that burden is not met here. Claims “shy of a plausible

entitlement to relief” cannot avoid dismissal simply because a jury

32a

Appendix A

***

Bernhardt and the other plaintiffs lost family

members in an al-Qaeda suicide bombing. They seek to

recover damages from HSBC, which has admitted to

evading sanctions to benefit foreign banks with ties to

terrorist organizations. While the ATA creates liability for

those who materially assist acts of terrorism, a successful

claim requires a plausible connection between HSBC

and al-Qaeda. We cannot infer from the complaint the

necessary connection to maintain the ATA aiding and

abetting and conspiracy claims. Therefore, we affirm the

decision of the district court.

So ordered.

could rely on evidence deduced at later stages of trial. Twombly,

550 U.S. at 559.

33a

Appendix A

Wilkins , Circuit Judge, concurring in part and

dissenting in part: Although I concur in the dismissal

of the conspiracy claim,1 I respectfully dissent from

the majority’s affirmance of the dismissal of the foreign

HSBC defendants for lack of personal jurisdiction as

well as the dismissal of the aiding-and-abetting claim.

When reviewing the dismissal of a complaint under the

Federal Rule of Civil Procedure 12(b)(6), we must “accept

all the well-pleaded factual allegations of the complaint

as true and draw all reasonable inferences from those

allegations in the plaintiff’s favor.” Banneker Ventures,

LLC v. Graham, 798 F.3d 1119, 1129, 418 U.S. App. D.C.

398 (D.C. Cir. 2015). The majority acts in contravention

of this standard by failing to grapple sufficiently with

all of the facts alleged in the complaint, which support

exercising personal jurisdiction over the foreign HSBC

defendants and upholding the aiding-and-abetting claim.

I.

Turning first to the issue of personal jurisdiction over

the foreign HSBC defendants, the essential foundation

of specific jurisdiction is a “relationship among the

defendant, the forum, and the litigation.” Ford Motor

Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1028,

209 L. Ed. 2d 225 (2021) (internal quotation marks and

citation omitted). Such a relationship is present here.

The majority seems to acknowledge that the Plaintiffs

adequately pled that “the foreign HSBC defendants

1. In my view, because the Plaintiffs have not adequately pled

an unlawful agreement, we need not decide whether the Plaintiffs

adequately pled an overt act in furtherance of the conspiracy.

34a

Appendix A

purposefully directed their conduct at U.S. markets by

coordinating with HSBC domestic affiliates to evade the

OFAC filter and to facilitate financial transactions in

violation of U.S. sanctions.” Maj. Slip Op. at 10-11. Yet

the majority opines that the Plaintiffs failed to allege that

this conduct related to al-Qaeda’s terrorist activities. Nor

did they, in the majority’s view, allege that this sanction

evasion “benefited or even impacted al-Qaeda.” Id. at 11.

This contention ignores specific facts that were alleged in

the Amended Complaint.

Specifically, the Plaintiffs pled that Bank Saderat,

Bank Melli, and Al Rajhi Bank were all subject to strict

economic sanctions due to their ties to terrorism and their

provision of financial support to terrorist organizations.

Am. Compl. ¶¶ 102-26. For example, the U.S. UnderSecretary for Terrorism and Financial Intelligence found

in 2006 that Bank Saderat was responsible for facilitating

Iran’s transfer of hundreds of millions of dollars to

terrorist organizations each year and announced sanctions

against Bank Saderat, which was also designated as

a specially designed global terrorist. Id. ¶¶ 103-04.

Accordingly, the U.S. Under-Secretary announced that

the U.S. would “no longer allow a bank like Saderat

to do business in the American financial system, even

indirectly.” Id. ¶ 103 (internal quotation marks omitted).

Likewise, the Amended Complaint provides that Bank

Melli was designated as a Specially Designated Nationals

and Blocked Persons after being found to have provided

financial services to terrorist groups in Iran. Id. ¶ 109.

“From 2002 to 2006, Bank Melli was used [by terrorist

organizations] to send at least $100 million to the [Iranianbased terrorist organizations].” Id.

35a

Appendix A

The Plaintiffs further allege that the founder of Al Rajhi

Bank was identified as a key financial contributor to alQaeda in the “Golden Chain Document,” an authenticated

al-Qaeda document that identifies al-Qaeda’s most

important financial benefactors. Id. ¶¶ 115-19. Al Rajhi

Bank maintained accounts for many of al-Qaeda’s charity

fronts and as early as 2003, the CIA warned that Al Rajhi

Bank served as a conduit for terrorist transactions. Id.

¶¶ 119-23. Indeed, HSBC’s internal compliance officials

raised concerns about Al Rajhi Bank being used by

terrorists and this prompted HSBC to temporarily end

its relationship with Al Rajhi Bank. Id. ¶¶ 175-77. All

in all, the HSBC Defendants conducted nearly 25,000

transactions with Iran and Iranian entities (including

Bank Melli and Bank Saderat) valued at approximately

$19.4 billion. Id. ¶ 161. Additionally, one of the HSBC

Defendants’ largest Banknotes’ customers was Al Rajhi

Bank, whom the HSBC Defendants provided with nearly

$1 billion U.S. dollars. Id. ¶¶ 172, 182.

Drawing all reasonable inferences from the allegations

in the Plaintiffs’ favor, they are sufficient to show that the

activities of the HSBC Defendants related to al-Qaeda and

benefited al-Qaeda. Iran is cited by the State Department

as the most active state sponsor of terrorism in the world,

and since the 1990s “has been operating under an alliance

with al Qaeda . . . by which Iran provides material support

for terrorism including financing, facilitation of travel,

training, safe havens and operational support.” Id. ¶¶ 98100. Under this alliance, Iran is a “critical transit point for

funding” al-Qaeda activities and Iran’s network “serves as

the core pipeline through which [al-Qaeda] moves money.”

36a

Appendix A

Id. ¶ 95; see also id. ¶ 93 (letter from Osama bin Laden,

founder of al-Qaeda, describing Iran as al-Qaeda’s “main

artery for funds”). The majority contends these allegations

are insufficient to show relatedness, “because aid to Iran

could just as plausibly benefit its otherwise legitimate

operations rather than al-Qaeda.” Maj. Slip Op. at 11. In

so ruling, the majority effectively backtracks from its

concession that Ford does not equate relatedness with

causation, and it ignores Ford’s admonition that “[w]e have

long treated isolated or sporadic transactions differently

from continuous ones” for personal jurisdiction purposes.

141 S. Ct. at 1028 n.4.

Additionally, according to a report from the Treasury

Department, the terrorist who engineered the Camp

Chapman attack was al-Qaeda’s emissary in Iran, was

provided safe haven in Iran, and was allowed to travel

freely in and out of the country with the permission of

Iranian officials. Id. ¶ 96-97. Balawi, the al-Qaeda agent

who committed the Camp Chapman suicide bombing,

trained for his mission at a training camp in Pakistan,

which “existed, in large part, through the funding and

material support provided by Iran.” Id. ¶ 229-31; see also

generally id. ¶¶ 65-101 (describing the various ways Iran

has materially supported al-Qaeda). Additionally, and

perhaps most importantly, Al Rajhi Bank has documented

ties with al-Qaeda and the HSBC Defendants were aware

of these ties. Id. ¶¶ 115-26, 175-77.

The Plaintiffs have also pled allegations plausibly

demonstrating that al-Qaeda’s ability to secure funding

impacted the success of its terrorist attacks. Specifically,

37a

Appendix A

the Plaintiffs allege that al-Qaeda’s ability to plan and

commit terrorist attacks required the use of a “global

financing and logistics infrastructure,” and that the Camp

Chapman bombing in particular was a sophisticated attack

requiring significant amounts of time, money, and logistics

in order to be successful. Id. ¶¶ 50-53. The U.S. UnderSecretary of Terrorism and Financial Intelligence stated:

The maintenance of those terrorist networks,

like al Qaeda, which threaten our national

security, is expensive — even if a particular

attack does not cost much to carry out. As

the 9/11 Commission explained, groups like al

Qaeda must spend money for many purposes

— to recruit, train, plan operations and bribe

corrupt officials for example. If we can eliminate

or even reduce their sources and conduits of

money, we can degrade their ability to do all

of these things, and thus can make them less

dangerous. Id. ¶ 54.

As the majority concedes—a point which bears

repeating—the Plaintiffs are not “required to identify

specific dollars spent on the [Camp Chapman] terrorist

attack.” Maj. Slip Op. at 13. Nor could they. Because as the

majority notes, “‘[m]oney is fungible[,]’” Maj. Slip Op. at 13

n.9 (quoting Holder v. Humanitarian L. Project, 561 U.S.

1, 31, 130 S. Ct. 2705, 177 L. Ed. 2d 355 (2010)), and “there

is reason to believe that foreign terrorist organizations

do not maintain legitimate financial firewalls between

those funds raised for civil, nonviolent activities, and those

ultimately used to support violent, terrorist operations.”

38a

Appendix A

Humanitarian L. Project, 561 U.S. at 31 (internal

quotation marks, citation, and emphasis omitted).

Simply put, the Plaintiffs’ factual allegations are

entitled to a reasonable inference that there is a sufficient

relatedness between the foreign HSBC Defendants’

contacts with the United States and the Camp Chapman

terrorist attack. If the foreign HSBC Defendants had

properly observed the sanctions against these banks, it

would have significantly hindered al-Qaeda’s ability to

successfully carry out terrorist attacks like the Camp

Chapman bombing. Let this sink in for a moment: the

majority holds that where HSBC regularly did business

with a bank founded and run by one of al-Qaeda’s largest

financial supporters, Am. Compl. ¶¶ 114-120, and where

the 9/11 Commission found that al-Qaeda hijackers used

this same bank to facilitate their terrorist attacks, id.

¶ 121, and where this bank advertised how people could

deposit funds into al-Qaeda-front charity accounts held at

the bank, id. ¶ 120, we cannot conclude that doing business

with this bank “relates to” any of al-Qaeda’s subsequent

terrorist acts, including at Camp Chapman. Maj. Op.

at 11-12. This is supposedly because the bank has “vast

and otherwise legitimate operations,” id. at 12, but this

reasoning ignores the conceded fungibility of money, the

role that financial support and access to U.S. banknotes

play in supporting terrorist activities, and this bank’s

specific record of funneling money to al-Qaeda.

As such, the foreign HSBC Defendants indeed had

“fair warning” that evading U.S. sanctions and allowing

sanctioned entities that funded terrorist organizations to

39a

Appendix A

access the U.S. financial markets and procure funds to

carry out terrorist attacks would subject them to liability

in the United States for attacks committed against its

citizens. Mwani v. Osama Bin Laden, 417 F.3d 1, 11, 368

U.S. App. D.C. 1 (D.C. Cir. 2005) (internal quotation marks

and citation omitted).

Accordingly, I would find that the Plaintiffs sufficiently

pled a basis for exercising personal jurisdiction over the

foreign HSBC Defendants.

II.

Now turning to the ATA aiding-and-abetting

claim, the only relevant issues in dispute are whether

the complaint would allow us to infer that the HSBC

Defendants were generally aware that they played a

role in al-Qaeda’s terrorist activities and that the HSBC

Defendants knowingly and substantially assisted those

activities. I would find that it does.

In Atchley v. AstraZeneca UK Ltd., we explained that

a “‘defendant need not be generally aware of its role in

the specific act that caused the plaintiff’s injury; instead,

it must be generally aware of its role in an overall illegal

activity from which the act that caused the plaintiff’s

injury was foreseeable.’” 22 F.4th 204, 220, 455 U.S. App.

D.C. 228 (D.C. Cir. 2022) (quoting Honickman v. BLOM

Bank SAL, 6 F.4th 487, 496 (2d Cir. 2021)). “[B]ear[ing] in

mind the challenges of establishing a defendant’s state of

mind without the benefit of discovery[,]” Atchley, 22 F.4th

at 220, the Plaintiffs have sufficiently pled allegations

40a

Appendix A

that give rise to an inference that the HSBC Defendants

were generally aware of their role in al-Qaeda’s terrorist

activities.

It cannot be disputed that the complaint sufficiently

pleads that at least one of the sanctioned entities, Al Rajhi

Bank, had extensive, documented ties to al-Qaeda. The

Final Report of the National Commission on Terrorist

Attacks Upon the United States (“9/11 Commission

Report”), which was published in 2004, 2 revealed the

existence of a “Golden Chain” document that identified

al-Qaeda’s most important financial benefactors, one of

which was Sulaiman bin Abdulaziz Al Rajhi (“Sulaiman”),

a founder of Al Rajhi Bank and former Chief Executive

Officer and Chairman of the Board. Am. Compl. ¶¶ 11418. Under the leadership of Sulaiman, Al Rajhi Bank

“maintained accounts for many of al-Qaeda’s charity

fronts” thereby “providing a mechanism for al-Qaeda

supporters to deposit funds directly into those accounts.”

Id. ¶¶ 119-20; see also id. ¶ 122 (CIA detailing Sulaiman’s

control over “the bank’s most important decisions”). The

complaint went on to allege specific examples of Al Rajhi

Bank funneling money to members of al-Qaeda that

committed terrorist attacks:

2. While the complaint does not contain this publication date,

we may take judicial notice of such date pursuant to Fed. R. Evid.

201. See Kaspersky Lab, Inc. v. U.S. Dep’t of Homeland Sec., 909

F.3d 446, 464, 439 U.S. App. D.C. 20 (D.C. Cir. 2018) (“Among the

information a court may consider on a motion to dismiss are public

records subject to judicial notice.”) (internal quotation marks and

citation omitted); see also National Commission on Terrorist Attacks

Upon the United States, The 9/11 Commission Report (2004), https://

www.ojp.gov/ncjrs/virtual-library/abstracts/911-commission-report

(last visited July 11, 2022).

41a

Appendix A

For example, money was funneled through Al

Rajhi Bank to an al-Qaeda cell in Hamburg,

Germany, through businessmen Mahmood

Darkazanli and Abdul Fattah Zammar, who in

turn provided the al-Qaeda cell of 9/11 hijackers

with financial and logistical support. One of the

9/11 hijackers, Abdul Aziz al Omari, utilized

a credit card drawn on Al Rajhi Bank when

planning the attacks and, just four days before

the attacks, received a wire transfer from Al

Rajhi Bank into a SunTrust bank account.

Id. ¶ 121. The majority concedes that these allegations

allow us to “plausibly infer that Al Rajhi Bank maintained

connections to al-Qaeda,” yet holds that the complaint

does not allege that the HSBC Defendants were aware

of these connections. Maj. Slip Op. at 18. This contention

ignores altogether the allegations in the complaint from

which we can reasonably infer that the HSBC Defendants

had actual knowledge of these connections. For instance,

the Golden Chain document, which established Al Rajhi

Bank’s ties to al-Qaeda, became public in 2004. Further

information about these ties came to light in the 9/11

Commission Report and Congressional hearings. Am.

Compl. ¶¶ 174-77. We can infer that the HSBC Defendants

were aware of this information because “public sources

such as media articles . . . plausibly suggest a defendant’s

knowledge which can be confirmed during discovery.”

Honickman, 6 F.4th at 502 n.18.

Undaunted by these allegations, the majority

maintains that even if the HSBC Defendants were aware

42a

Appendix A

of these connections, the Plaintiffs “fail[] to allege that

those connections were so close that HSBC had to be

aware it was assuming a role in al-Qaeda’s terrorist

activities by working with Al Rajhi Bank.” Maj. Slip Op. at

19. In the majority’s view, because Al Rajhi Bank engaged

in “extensive legitimate operations,” the Plaintiffs had

to allege “that a substantial part of these operations

involved al-Qaeda” and that “Al Rajhi Bank was so closely

intertwined with al-Qaeda that we can infer HSBC was

aware it was assuming a role in al-Qaeda’s terrorist

activities simply by doing business with Al Rajhi Bank.”

Id. at 20. The Plaintiffs alleged that “Al Rajhi Bank

advertised the existence and numerical designation of

the accounts it maintained for [al-Qaeda-front charities]

throughout the Muslim world, providing a mechanism for

al-Qaeda supporters to deposit funds directly into those

accounts.” Am. Compl. ¶ 120. The majority therefore holds

that a bank that literally advertises how members of the

public can give money to al-Qaeda (and enables them to do

so) is not sufficiently “closely intertwined” with al-Qaeda to

satisfy the general awareness requirement. The majority’s

reasoning appears to be that the HSBC defendants were

only generally aware that its customer, Al Rahji Bank,

supported al-Qaeda’s “legitimate” charitable activities,

rather than al-Qaeda’s terrorism. As we have said in a

different context, “[t]his finding is quite extraordinary,

because it totally defies both logic and common sense.”

Georgetown Hotel v. N.L.R.B., 835 F.2d 1467, 1471, 266

U.S. App. D.C. 371 (D.C. Cir. 1987).

Turning to the last element for aiding-and-abetting

liability, the Plaintiffs must allege that the HSBC

43a

Appendix A

Defendants knowingly provided substantial assistance to

the Camp Chapman attack. The knowledge component is

satisfied “[i]f the defendant knowingly—and not innocently

or inadvertently—gave assistance, directly or indirectly.”

Atchley, 22 F.4th at 222 (internal quotation marks and

citation omitted). It cannot be disputed that the HSBC

Defendants knowingly assisted sanctioned entities Bank

Melli and Bank Saderat in evading U.S. sanctions and

providing Al Rajhi Bank with access to U.S. Banknotes

despite its knowledge of Al Rajhi Bank’s ties to al-Qaeda.

See Am. Compl. ¶¶ 37, 200-02 (the HSBC Defendants

accepting criminal responsibility for its conduct in the

Deferred Prosecution Agreement); see also Honickman, 6

F.4th at 500 (noting that the “knowledge” component does

“not require [a defendant] to ‘know’ anything more . . .

than what she knew for the general awareness element”).

The Plaintiffs have also sufficiently pled that the

HSBC Defendants provided substantial assistance. In

determining whether a defendant has provided substantial

assistance, we consider six factors: “(i) the nature of

the act assisted, (ii) the amount and kind of assistance,

(iii) the defendants’ presence at the time of the tort, (iv)

the defendants’ relationship to the tortious actor, (v)

the defendants’ state of mind, and (vi) the duration of

assistance.” Atchley, 22 F.4th at 221. Bearing in mind that

“[n]o factor alone is dispositive, and the weight of each

varies with the circumstances of the particular claim[,]”

id., I address each of these factors in turn.

Factors 1 and 2: Nature of Act & Amount and

Kind of Assistance. The Halberstam Court noted that

44a

Appendix A

“the nature of the act involved dictates what aid might

matter, i.e., be substantial.” Halberstam v. Welch, 705

F.2d 472, 484, 227 U.S. App. D.C. 167 (D.C. Cir. 1983)

(first emphasis omitted). Therefore, a court may “apply

a proportionality test to particularly bad or opprobrious

acts, i.e., a defendant’s responsibility for the same amount

of assistance increases with the blameworthiness of

the tortious act or the seriousness of the foreseeable

consequences.” Id. at 484 n.13. “The particularly offensive

nature of an underlying offense might also factor” on the

defendant’s state of mind. Id.

The nature of the act alleged here is terrorism that

resulted in the deaths of nine people. There can be no

dispute as to the severity and heinous nature of terrorist

attacks. See Pub. L. No. 114-122, 130 Stat. 852 § 2(a)(1)

(“International terrorism is a serious and deadly problem

that threatens the vital interests of the United States.”).

The amount and kind of assistance that was provided

is also significant. As we already noted in Atchley,

“[f]inancial support is indisputably important to the

operation of a terrorist organization, and any money

provided to the organization may aid its unlawful goals.”

22 F.4th at 222 (internal quotation marks and citations

omitted). As aforementioned, here, the Plaintiffs allege that

the HSBC Defendants devised fraudulent schemes to evade

U.S. sanctions and processed 25,000 deceptive transactions

for sanctioned banks connected to Iran, valued at more

than $19.4 billion. Am. Compl. ¶¶ 148-50. The Plaintiffs

also allege that despite actual knowledge of Al Rajhi Bank’s

ties to al-Qaeda, the HSBC Defendants provided nearly $1

billion in U.S. Banknotes to Al Rajhi Bank leading up to

the Camp Chapman attack. Id. ¶¶ 178-82.

45a

Appendix A

Nevertheless, the majority contends that these

allegations are insufficient because the Plaintiffs failed

“to allege how much (if any) of that money indirectly

flowed to al-Qaeda.” Maj. Slip Op. at 22. The majority’s

position contradicts well-reasoned authority, including

our own precedent. “[I]f a plaintiff plausibly alleges

the general awareness element, she does not need to

also allege the [foreign terrorist organization] actually

received the funds.” Honickman, 6 F.4th at 500. Rather,

“[f]actual allegations that permit a reasonable inference

that the defendant recognized the money it transferred to

its customers would be received by the [foreign terrorist

organization] would suffice.” Id. As already outlined

above, the Plaintiffs have pled that the HSBC Defendants

provided Al Rajhi Bank—despite actual knowledge of

its ties to al-Qaeda—with nearly one billion U.S. dollars

leading up to the time of the Camp Chapman attack.

As such, the complaint plausibly alleges that the HSBC

Defendants recognized this money would be used to fund,

at least in part, al-Qaeda operations.

Moreover, even if one considers this assistance to

be relatively trivial, compared to the “extraordinary

blameworthiness” of al-Qaeda’s terrorist attacks, “even

relatively trivial aid could count as substantial.” Atchley,

22 F.4th at 222 (internal quotation marks and citation

omitted); see also Halberstam, 705 F.2d at 488 (explaining

the importance of evaluating acts of assistance “in the

context of the enterprise they aided” rather than in

isolation because although the defendant’s assistance “may

not have been overwhelming as to any given” act in the

“five-year life of this criminal operation,” such assistance

46a

Appendix A

“added up over time to an essential part of the pattern”);

Restatement (Third) of Torts § 28 cmt. d (2020) (“[A]

clear understanding of wrongdoing can make a small act

of assistance more blameworthy than it would seem if the

defendant’s knowledge were less certain or precise.”);

id. (“[T]he enormity of a wrong . . . or the intimacy of

a defendant’s knowledge of it may appropriately cause

such lesser acts to be considered aiding and abetting.”).

Therefore, these factors support substantiality.

Factor 3: Presence or Absence at the Time of the

Tort. Because the HSBC Defendants were not physically

present at the scene, this factor may undermine the

Plaintiffs’ position. See Atchley, 22 F.4th at 223 (noting that

because the “defendants were not physically present at the

attacks on plaintiffs[,] [t]his factor cuts against counting”

the defendants’ assistance as substantial). However, as

the majority notes, presence could be understood in a

transactional sense and the HSBC Defendants were

alleged to have ongoing business relations with sanctioned

entities, particularly Al Rajhi Bank, before and leading

up to the Camp Chapman attack. See Am. Compl. ¶¶ 161,

182. Thus, I would find that this factor neither supports

nor weighs against substantiality.

Factor 4: Relationship to Principal. Because “there

is no special relationship here between [the HSBC]

defendants and the principal tortfeasors” I would also

“treat this factor as neither supporting nor detracting

from substantiality.” Atchley, 22 F4th at 223.

Factor 5: State of Mind. This factor favors finding

substantiality because Plaintiffs have sufficiently alleged

47a

Appendix A

that the HSBC Defendants provided knowing assistance

and such assistance “evidences a deliberate long-term

intention to participate in an ongoing illicit enterprise.”

Halberstam, 705 F.2d at 488. As we have explained,

“[a]iding-and-abetting liability reaches actors . . .

who may seek only financial gain but pursue it with a

general awareness of aiding some type of tort or crime.”

Atchley, 22 F.4th at 224. Here, the Plaintiffs allege the

HSBC Defendants wanted to increase its business and

purposefully devised a scheme to evade U.S. sanctions

and engage in illicit transactions with entities that were

sanctioned explicitly for their ties to terrorism. Therefore,

the HSBC Defendants’ alleged state of mind supports a

finding of substantiality.

Factor 6: Duration of Assistance. The Halberstam

Court considered this factor to be particularly “important”

because “[t]he length of time an alleged aider-abettor has

been involved with a tortfeasor almost certainly affects

the quality and extent of their relationship and probably

influences the amount of aid provided as well; additionally,

it may afford evidence of the defendant’s state of mind.”

Halberstam, 705 F.2d at 484. Here, the HSBC Defendants’

alleged aid spanned more than a decade. Am. Compl.

¶¶ 31-36. Accordingly, this factor weighs strongly in favor

of substantiality.

In sum, four of the six Halberstam factors weigh

strongly in favor of finding substantial assistance, and the

majority errs by concluding otherwise.

***

48a

Appendix A

When Congress amended the ATA in 2016, its purpose

was:

to provide civil litigants with the broadest

possible basis, consistent with the Constitution

of the United States, to seek relief against

persons, entities, and foreign countries,

wherever acting and wherever they may be

found, that have provided material support,

directly or indirectly, to foreign organizations

or persons that engage in terrorist activities

against the United States.

Justice Against Sponsors of Terrorism Act, Pub. L. No.

114-222, § 2(b), 130 Stat. 852, 853 (2016) (Amendment).

Through its combination of “too stingy a reading of the

complaint,” Maljack Prods., Inc. v. Motion Picture Ass’n

of Am., Inc., 52 F.3d 373, 376, 311 U.S. App. D.C. 224

(D.C. Cir. 1995) (reversing dismissal), and too stingy a

reading of precedent and relevant authorities, the majority

has frustrated Congress’s intent. Just as importantly,

the majority has unfairly deprived these Plaintiffs of

their rightful opportunity to prove their well-pleaded

allegations in court. I respectfully dissent.

49a

Appendix B

Appendix B — MEMORANDUM

opinion of

the united states DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA, FILED

MARCH 22, 2023

United States District Court

for the District of Columbia

Civil Action No. 18-2739 (TJK)

DANA MARIE BERNHARDT et al.,

Plaintiffs,

v.

ISLAMIC REPUBLIC OF IRAN,

Defendant.

March 22, 2023, Decided

March 22, 2023, Filed

MEMORANDUM OPINION

Almost 15 years ago, a Jordanian doctor with ties to

al-Qaeda detonated his suicide vest at Camp Chapman,

a covert American military installation in Afghanistan.

The deadliest attack on the Central Intelligence Agency

in recent history took the lives of nine persons at the

base, including American contractors Jeremy Wise and

Dane Paresi. Plaintiffs—the two contractors’ estates and

family members—allege that the Islamic Republic of Iran

provided al-Qaeda with material support for the attack.

50a

Appendix B

Thus, they allege, Iran should be held liable for it under

the Foreign Sovereign Immunities Act. For the reasons

explained below, the Court agrees, and will grant their

pending Motion for Default Judgment, enter judgment

against Iran, and award damages of $268,553,684.

I.

Background

A. Factual Background

On December 30, 2009, Humam Khalil al-Balawi, a

Jordanian doctor affiliated with al-Qaeda, detonated a

vest containing over thirty pounds of C-4 explosives and

shrapnel shortly after arriving at Forward Operating

Base Chapman (“Camp Chapman”).1 ECF No. 48 at 1;

ECF No. 48-1 at 39, 41; ECF No. 48-2 at 1-2. 2 Camp

Chapman was a clandestine Central Intelligence Agency

(“CIA”) installation in Khost, Afghanistan. ECF No.

48 at 1; ECF No. 48-1 at 40. The American intelligence

community had believed al-Balawi was a double agent

1. Founded in the late-1980s during the final days of the AfghanSoviet War, al-Qaeda rapidly gained international notoriety as a

broad-based militant Islamic organization involved in the planning

and execution of terrorist acts worldwide, including the bombing of

two American embassies in East Africa and the September 11, 2001

attacks in the United States. ECF No. 48-1 at 16-18, 20-25.

2. In resolving this Motion, the Court relies on the uncontroverted

factual assertions in Plaintiffs’ Amended Complaint, ECF No. 10,

Plaintiffs’ Memorandum in Support of their Motion for Default

Judgment, ECF No. 48, evidence attached to that Memorandum,

ECF Nos. 48-1 to -12, and other facts of which the Court takes

judicial notice.

51a

Appendix B

embedded within al-Qaeda’s top leadership in northwest

Pakistan who could help the United States and Jordan

infiltrate al-Qaeda. ECF No. 48-1 at 39-40. Al-Balawi

had represented to CIA operatives that he had access

al-Qaeda’s second-in-command, Ayman al-Zawahiri. Id.

at 40. On that understanding, CIA officials arranged for

a meeting with al-Balawi at Camp Chapman. Id. at 39-41.

But tragically, al-Balawi was a triple agent who had

conspired with al-Qaeda to plan a suicide attack. ECF No.

48-1 at 40-41. After he arrived at Camp Chapman, Wise

and Paresi approached him and noticed one of his hands

was concealed. Id. at 41. They ordered him to show his

hands, but al-Balawi detonated his vest. Id.; see also ECF

No. 48 at 10, 12 (citing Joby Warrick, The Triple Agent:

The Al-Qaeda Mole Who Infiltrated the CIA 8 (2012)).

Along with al-Balawi’s own life, the explosion took nine

others, including Paresi and Wise, and wounded several

more. ECF No. 48-1 at 41. The attack was the “single

deadliest episode” for the CIA since September 11, 2001.

ECF No. 48 at 2 (quoting Alissa J. Rubin & Mark Mazzetti,

Suicide Bomber Killed C.I.A. Operatives, N.Y. Times

(Dec. 30, 2009), https://www.nytimes.com/2009/12/31/

world/asia/31khost.html).

According to Plaintiffs, the suicide bombing at Camp

Chapman was a part of a broader conspiracy between

al-Qaeda, Tehrik-e-Taliban Pakistan (“TTP”), and Iran

to attack the United States and its allies. 3 See ECF No.

3. The TTP, also known as the Movement of the Taliban in

Pakistan, is a Pakistan-based militant group founded in 2007. ECF

No. 48-1 at 31.

52a

Appendix B

48 at 1-2, 17-21. Iran has supported al-Qaeda since the

early 1990s. ECF No. 48-1 at 21-31. According to the

Treasury Department, Iran has historically “serve[d] as

the core pipeline through which [al Qaeda] move[d] money,

facilitators, and operatives from across the Middle East to

South Asia.” ECF No. 48 at 2 & n.4 (alterations in original)

(quoting U.S. Dep’t of Treasury, Treasury Targets Key

al-Qa’ida Funding and Support Network Using Iran

as a Critical Transit Point (July 28, 2011), https://home.

treasury.gov/news/press-releases/tg1261); ECF No. 48-1

at 27-29, 50. In addition, the Treasury Department has

described Iran as a “critical transit point for funding

to support [al-Qaeda’s] activities in Afghanistan and

Pakistan.” ECF No. 48 at 16 & n.22 (citation omitted); see

also ECF No. 48-1 at 50 & n.221. Iran’s support extended to

the TTP, too. According to the State Department, the TTP

has a “symbiotic relationship” with al-Qaeda, providing alQaeda “safe haven” in exchange for “ideological guidance.”

ECF No. 48-1 at 17, 33. Iran indirectly supported the

TTP by providing sanctuary and cross-border mobility

to Atiyah Abd al-Rahman—an al-Qaeda leader with close

ties to Osama bin-Laden—who “played a central role in

[al-Qaeda and the TTP’s] alliance.” Id. at 28, 35, 48-49.

These channels of support, according to Plaintiffs’

expert, were crucial ingredients of the Camp Chapman

attack, because the success of the mission relied on

extensive financial, material, and logistical assistance

from Iran. ECF No. 48-1 at 21-31, 47-50; ECF No. 48 at

2. Specifically, according to Plaintiffs’ expert, before the

Camp Chapman bombing, Iran provided al-Qaeda with

the ability to move funds internationally; the opportunity

53a

Appendix B

to travel without hindrance across its borders into

Afghanistan and Pakistan; and the funding necessary to

establish and maintain the communications and training

networks that facilitated the planning and execution of

the attack. See ECF No. 48-1 at 21, 24, 27-29, 47-50; ECF

No. 48 at 2, 16-17. The sanctuary and mobility Iran gave

al-Rahman proved particularly important. Al-Rahman

helped forge the alliance between al-Qaeda and the TTP.

ECF No. 48-1 at 35-37, 49-50. Al-Balawi’s “first point

of contact with Islamist militant groups was with the

TTP.” Id. at 50. And as described in more detail below,

al-Rahman himself helped “engineer[]” the attack. Id. at

48-49. Thus, Plaintiffs’ expert concluded that Iran’s aid

to al-Qaeda and others bore a “definite connection to the

attack on Camp Chapman.” See id. at 51.

Because Wise and Paresi were killed in the attack,

they could not fulfill their professional aspirations after

leaving their positions as CIA contractors. ECF No. 48-1

at 41; ECF No. 48-2 at 1-2. Upon completion of his 90-day

security contract with the CIA, Wise had intended to

return to the United States to continue medical school,

which he had put on pause so that he could enlist in the

Navy following September 11. See ECF No. 48 at 29; see

also ECF No. 48-3 at 2. Likewise, Paresi had planned

to pursue employment at home after concluding his final

stint as a CIA contractor. See ECF No. 48 at 29-30; see

also ECF No. 48-4 at 2.

Wise’s and Paresi’s families have and will continue

to suffer profoundly as a result of their deaths. Wise’s

sudden passing has taken an immense physical, mental,

54a

Appendix B

and emotional toll on his close family members. His widow,

Dana Bernhardt, and his stepson, Ethan Prusinski, have

been left without the emotional and financial support for

which they once depended on Wise. ECF No. 48-5 ¶¶ 9-10.

Bernhardt recounts losing her “best friend” and the “one

constant” in her life. Id. ¶ 4. She has sought counseling and

treatment for depression, elevated stress, and anxiety. Id.

¶¶ 26-27. And she continues to grieve his loss and suffers

from panic attacks, regular night terrors, and symptoms

consistent with post-traumatic stress disorder (“PTSD”).

Id. ¶¶ 27-28. Prusinski had an “inseparable” father-son

bond with Wise. Id. ¶ 41. After the loss of his only father

figure at age six, he struggled to cope with his grief,

struggled to trust others, and was “in and out of trouble

in school.” Id. ¶¶ 49-50. As a result, he attended counseling

throughout his childhood. Id. ¶ 49. Later as a young adult,

he harbored “frustrations with the purpose of his life,”

which he attributes to Wise’s death. Id. ¶ 52.

Wise’s parents and siblings have suffered, too. Wise’s

father’s health “rapidly declined” following the attack,

leading to such frequent crying that he had broken blood

vessels under his eyes. ECF No. 48-6 ¶¶ 23-24. He passed

away from Parkinson’s disease in 2016. Id. ¶ 27. Wise’s

mother Mary Lee Wise also experienced a sharp decline in

health after her son’s death. Id. ¶ 35. She became violently

ill with migraines, had vomiting episodes, refused to leave

her bed for days, and many years later suffered a lifethreatening stroke and hemorrhage that rendered her

bedridden, mentally scattered, and partially immobilized.

Id. ¶¶ 25-32. Those close to Wise›s mother “know the

grief claimed” her health. Id. ¶ 35. Finally, Wise’s sister

55a

Appendix B

Mary Heather Wise suffered from chronic insomnia and

an accelerated heart rate because of her brother’s death.

Id. ¶¶ 14-16. As the months went on, her grief strained

her marriage, and she struggled to care for her young

daughter who is on the autism spectrum. Id. ¶ 16. At one

point, Mary Heather Wise became so physically weak that

she went into stage-four adrenal exhaustion. Id. ¶¶ 14-19.

Later, she was diagnosed with PTSD. Id. ¶ 20. Her own

grief was exacerbated by having to watch and support her

parents as they mourned the loss of their son. Id. ¶¶ 22,

24, 28, 33. She now relies on anti-anxiety and sleeping

medication. Id. ¶ 15.

Paresi’s family members have also experienced severe

physical and emotional pain in the wake of the attack.

Paresi’s widow, Mindylou Paresi, suffers from intense

bouts of grief having lost her “husband, best friend,

confidant, hero, protector, and soul mate,” and she has

attended therapy to learn how to better cope with his

passing. ECF No. 48-7 ¶¶ 4, 14. Since her husband’s death,

she has struggled to regain her sense of normalcy and

goes through life “feeling empty,” “without direction,”

and “in freefall.” Id. ¶¶ 10-12. Paresi’s death also brought

“trauma” to his stepdaughter, Alexandra VandenBroek,

and daughter, Elizabeth Santina Paresi, who have been

plagued by mental distress over the past decade. ECF No.

48-8 ¶¶ 13-14, 24; ECF No. 48-9 ¶¶ 11-23. VandenBroek,

for her part, suffered an indescribable emotional toll

processing the loss of her “heart and cornerstone of [her]

family” and “superhero.” ECF No. 48-8 ¶¶ 10-11. She had

to leave her job to help support her incomplete family unit,

and, perhaps most painful, she had to watch her mother

56a

Appendix B

“crumble from the pain of this loss.” Id. ¶ 13. The great

deal of press coverage of her father’s death—much of it,

she says, incorrect—compounded her and her family’s

grieving process. Id. ¶ 15; see also id. ¶ 20 (describing her

harrowing experience inadvertently watching the movie

Zero Dark Thirty, which depicts the Camp Chapman

bombing). For Elizabeth Santina Paresi, the mental

distress has manifested itself in persistent psychological

struggles and suicidal ideations. ECF No. 48-9 ¶¶ 1618. She yearned for a father “more than anything” but

“knew that wish would never come true.” Id. ¶ 16. Once

“adventurous,” and “confident,” she says she is now “very

secluded and quiet” and is “unsure of a lot of things,

hesitant, and anxious to perform and complete tasks.”

Id. ¶ 23. As with her stepsister, the onslaught of press

compounded her grief. Id. ¶¶ 27-28.

Paresi’s parents suffered the pain of losing their

firstborn son. Janet Paresi, Paresi’s mother, underwent

a “drawn out and incredibly difficult” grieving process,

ECF 48-10 ¶ 11, and has been retraumatized watching her

husband with dementia struggle to cope with recurring

realizations of his son’s death, id. ¶¶ 12-13. Paresi’s

brother Terry Paresi was “wrecked” upon learning of his

lifelong mentor’s sudden passing. ECF No. 48-11 ¶¶ 4, 6.

He now sees a specialist and takes medication daily to

treat his anxiety. Id. ¶¶ 7-8. Lastly, Paresi’s sister Santina

Cartisser comments how “difficult [it is] to convey the

absolute shock that went through [her] brain” when she

learned her brother had been killed. ECF No. 48-12 ¶ 14.

She notes that relationships within their family have

deteriorated because her brother was the “glue to [their]

57a

Appendix B

dysfunctional family.” Id. ¶¶ 11, 16.

B. Procedural Background

In 2018, Plaintiffs filed suit against Iran. ECF No. 1.

They sought relief under the Foreign Sovereign Immunities

Act (“FSIA”) for Wise’s and Paresi’s extrajudicial killings

in connection with the Camp Chapman attack and the

families’ resulting injuries. See id. Plaintiffs later filed

an Amended Complaint that added four HSBC-affiliated

financial institutions as Defendants along with Iran. See

ECF No. 10. The Court dismissed the claims against the

HSBC Defendants for lack of personal jurisdiction, as well

as for Plaintiffs’ failure to state a claim under the Justice

Against Sponsors of Terrorism Act, and the Circuit

affirmed. See Bernhardt v. Islamic Republic of Iran, No.

18-cv-2739 (TJK), 2020 U.S. Dist. LEXIS 214185, 2020

WL 6743066 (D.D.C. Nov. 16, 2020), aff’d, 47 F.4th 856

(D.C. Cir. 2022). Thus, Iran remains as the sole Defendant.

After Plaintiffs amended their complaint, the Court

reissued summons as to Iran, ECF No. 13, and Plaintiffs

initiated service via registered mail under 28 U.S.C.

§ 1608(a)(3). ECF No. 21. Plaintiffs then waited thirty

days under 28 U.S.C. § 1608(a)(4), before requesting that

the State Department help serve Iran by diplomatic

means. ECF No. 29. In July 2020, Iran was served with,

and refused to accept, a copy of the summons, Amended

Complaint, and notice of suit through the embassy of

Switzerland in Tehran, Iran. See ECF No. 36. Iran

never responded to the Amended Complaint or otherwise

appeared. Thus, the clerk entered default against Iran,

58a

Appendix B

ECF No. 46, and Plaintiffs promptly moved for default

judgment.4 ECF No. 48.

II. Legal Standard

Under Federal Rule of Civil Procedure 55, a court

may consider entering a default judgment when a party

applies for that relief. See Fed. R. Civ. P. 55(b)(2). “[S]trong

policies favor resolution of disputes on their merits,” and

so “‘[t]he default judgment must normally be viewed as

available only when the adversary process has been halted

because of an essentially unresponsive party.’” Jackson v.

Beech, 636 F.2d 831, 836, 205 U.S. App. D.C. 84 (D.C. Cir.

1980) (quoting H.F. Livermore Corp. v. Aktiengesellschaft

Gebruder Loepfe, 432 F.2d 689, 691, 139 U.S. App. D.C. 256

(D.C. Cir. 1970)). The “determination of whether a default

judgment is appropriate is committed to the discretion of

the trial court.” Hanley-Wood LLC v. Hanley Wood LLC,

783 F. Supp. 2d. 147, 150 (D.D.C. 2011) (citing Jackson,

636 F.2d at 836).

4. In their proposed order and memorandum in support of

their Motion, Plaintiffs separated their claims for the Wise family

into “Count I” and for the Paresi family into “Count II.” ECF No.

47-1; ECF No. 48 at 43-44. But as already mentioned, the Court

dismissed from the Amended Complaint the counts brought against

the HSBC Defendants, Counts II and III. See ECF No. 10 ¶¶ 254-80.

Only Count I of the Amended Complaint is brought against Iran. See

id. ¶¶ 244-53. Thus, despite Plaintiffs’ requesting judgment against

Iran on “Count I” and “Count II,” the Court construes Plaintiffs’

Motion as requesting judgment only on Count I.

59a

Appendix B

Even if a party fails to respond or refuses to

participate in the litigation, “entry of a default judgment

is not automatic.” Mwani v. bin Laden, 417 F.3d 1, 6,

368 U.S. App. D.C. 1 (D.C. Cir. 2005) (footnote omitted).

Rather, a court retains its “affirmative obligation” to

determine whether it has subject-matter jurisdiction over

the action. James Madison Ltd. by Hecht v. Ludwig, 82

F.3d 1085, 1092, 317 U.S. App. D.C. 281 (D.C. Cir. 1996).

Additionally, “a court should satisfy itself that it has

personal jurisdiction before entering judgment against

an absent defendant.” Mwani, 417 F.3d at 6. “The party

seeking default judgment has the burden of establishing

both subject matter jurisdiction over the claims and

personal jurisdiction over the defendants.” Thuneibat

v. Syrian Arab Republic, 167 F. Supp. 3d 22, 33 (D.D.C.

2016). With no evidentiary hearing, the burden to show

personal jurisdiction can be satisfied “with a prima facie

showing.” Mwani, 417 F.3d at 7. And in providing such a

showing, “[the party] may rest their argument on their

pleadings, bolstered by such affidavits and other written

materials as they can otherwise obtain.” Id.

“When default judgment is sought under the FSIA,

a claimant must ‘establish[] his claim or right to relief

by evidence satisfactory to the court.’” Warmbier v.

Democratic People’s Republic of Korea, 356 F. Supp. 3d 30,

42 (D.D.C. 2018) (quoting 28 U.S.C. § 1608(e)); see Roeder v.

Islamic Republic of Iran, 333 F.3d 228, 232, 357 U.S. App.

D.C. 107 (D.C. Cir. 2003) (“The court . . . has an obligation

to satisfy itself that plaintiffs have established a right to

relief.”). And courts must apply that standard mindful

that “Congress enacted the terrorism exception expressly

60a

Appendix B

to bring state sponsors of terrorism . . . to account for

their repressive practices,” Kim v. Democratic People’s

Republic of Korea, 774 F.3d 1044, 1048, 413 U.S. App. D.C.

356 (D.C. Cir. 2014), and to “punish foreign states who

have committed or sponsored such acts and deter them

from doing so in the future,” Price v. Socialist People’s

Libyan Arab Jamahiriya, 294 F.3d 82, 88-89, 352 U.S.

App. D.C. 284 (D.C. Cir. 2002).

As a result, the D.C. Circuit has instructed that “courts

have the authority—indeed . . . the obligation—to ‘adjust

evidentiary requirements to . . . differing situations.’” Kim,

774 F.3d at 1048 (quoting Bundy v. Jackson, 641 F.2d 934,

951, 205 U.S. App. D.C. 444 (D.C. Cir. 1981)). To be sure,

courts must draw their “findings of fact and conclusions

of law from admissible testimony in accordance with the

Federal Rules of Evidence.” Id. at 1049 (quoting Daliberti

v. Republic of Iraq, 146 F. Supp. 2d 19, 21 n.1 (D.D.C.

2001)). But “uncontroverted factual allegations” supported

by admissible evidence may be taken as true. See Roth v.

Islamic Republic of Iran, 78 F. Supp. 3d 379, 386 (D.D.C.

2015). A court may also “take judicial notice of any fact

‘not subject to reasonable dispute in that it is . . . capable

of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.’” Valore

v. Islamic Republic of Iran, 700 F. Supp. 2d 52, 59 (D.D.C.

2010) (quoting Fed. R. Evid. 201(b)); see also Detroit Int’l

Bridge Co. v. Gov’t of Can., 133 F. Supp. 3d 70, 85 (D.D.C.

2015) (“[J]udicial notice may be taken of public records and

government documents available from reliable sources.”).

And 28 U.S.C. § 1608(e) “does not require a court to step

into the shoes of the defaulting party and pursue every

61a

Appendix B

possible evidentiary challenge.” Owens v. Republic of

Sudan, 864 F.3d 751, 785, 431 U.S. App. D.C. 163 (D.C.

Cir. 2017), vacated & remanded on other grounds sub

nom. Opati v. Republic of Sudan, 140 S. Ct. 1601, 206 L.

Ed. 2d 904 (2020). Ultimately, “the FSIA leaves it to the

court to determine precisely how much and what kinds of

evidence the plaintiff must provide.” Kim, 774 F.3d at 1047.

In an FSIA default proceeding, a court can find

that the evidence presented is satisfactory “when

the plaintiff shows ‘her claim has some factual basis,’

. . . even if she might not have prevailed in a contested

proceeding.” Owens, 864 F.3d at 785 (citation omitted).

“This lenient standard is particularly appropriate for

[an] FSIA terrorism case, for which firsthand evidence

and eyewitness testimony is difficult or impossible to

obtain from an absent and likely hostile sovereign.” Id.

Thus, courts are given “an unusual degree of discretion

over evidentiary rulings in [an] FSIA case against a

defaulting state sponsor of terrorism.” Id. And this

discretion extends to the admission of expert testimony,

often “of crucial importance in terrorism cases . . . because

firsthand evidence of terrorist activities is difficult, if not

impossible, to obtain,” “[v]ictims of terrorist attacks . . . are

often . . . unable to testify about their experiences,” and

“[p]erpetrators of terrorism typically lie beyond the reach

of the courts and go to great lengths to avoid detection.”

Id. at 787 (citations omitted). Moreover, “[e]yewitnesses

in a state that sponsors terrorism are similarly difficult

to locate,” and “[t]he sovereigns themselves often fail to

appear and to participate in discovery.” Id. For these

reasons, the Circuit has recognized that “reliance upon

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secondary materials and the opinions of experts is often

critical in order to establish the factual basis of a claim

under the FSIA terrorism exception.” Id.

III. Analysis

A court may enter a default judgment in an FSIA case

“when (1) the Court has subject matter jurisdiction over

the claims, (2) personal jurisdiction is properly exercised

over the defendants, (3) the plaintiffs have presented

satisfactory evidence to establish their claims against

the defendants, and (4) the plaintiffs have satisfactorily

proven that they are entitled to the monetary damages

that they seek.” Braun v. Islamic Republic of Iran, 228

F. Supp. 3d 64, 75 (D.D.C. 2017); accord Akins v. Islamic

Republic of Iran, 332 F. Supp. 3d 1, 32 (D.D.C. 2018). The

Court addresses each in turn.

A. Subject-Matter Jurisdiction

“The FSIA provides a basis for asserting jurisdiction

over foreign nations in the United States.” Price, 294

F.3d at 87 (citing Argentine Republic v. Amerada Hess

Shipping Corp., 488 U.S. 428, 443, 109 S. Ct. 683, 102 L.

Ed. 2d 818 (1989)). Under the FSIA, a federal court has

original jurisdiction over “(1) nonjury civil actions (2) for

claims seeking relief in personam (3) against a foreign

state (4) when the foreign state is not entitled to immunity

either under sections 1605 to 1607 of [this title] or under

any applicable international agreement.” Shoham v.

Islamic Republic of Iran, No. 12-cv-508 (RCL), 2017 U.S.

Dist. LEXIS 84119, 2017 WL 2399454, at *10 (D.D.C. June

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1, 2017); 28 U.S.C. § 1330(a). The first three prerequisites

are easily met here.

First, even though Plaintiffs’ Amended Complaint

(which included the HSBC Defendants) demanded a jury

trial, ECF No. 10 at 1, 61, the FSIA does not permit

such a proceeding against a foreign state, see Doe v.

Democratic People’s Republic of Korea Ministry of

Foreign Affs. Jungsong-Dong, 414 F. Supp. 3d 109, 123

(D.D.C. 2019) (All “federal appellate courts which have

considered the issue . . . have held that jury trials are not

available in suits brought under the [FSIA].” (citation

omitted) (alterations in original)). Now that the Court

has dismissed the HSBC Defendants, Bernhardt, 2020

U.S. Dist. LEXIS 214185, 2020 WL 6743066, at *8, this

action is a “nonjury civil action,” as Plaintiffs acknowledge,

see ECF No. 48 at 10. See also Fed. R. Civ. P. 39(a)(2)

(permitting a court to dispense with jury-trial demand

when it finds, “on motion or on its own, . . . that on some

or all of those issues [for which a jury trial is demanded]

there is no federal right to a jury trial”). Second, this

is an action seeking relief in personam not in rem. See

Shoham, 2017 U.S. Dist. LEXIS 84119, 2017 WL 2399454,

at *10 (explaining that suing defendants as “legal persons”

rather than “property” means that the claims “seek relief

in personam”); Thuneibat, 167 F. Supp. 3d at 34 (holding

that a lawsuit seeking damages from Syria to compensate

for a suicide bombing sought in personam relief). Third,

Iran “is plainly a foreign state.” Shoham, 2017 U.S.

Dist. LEXIS 84119, 2017 WL 2399454, at *10. Thus, the

only outstanding subject-matter-jurisdiction question is

whether the FSIA or another international agreement

entitles Iran to immunity.

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Appendix B

“A foreign state is typically immune from jurisdiction

in [United States] courts,” but the FSIA provides a narrow

set of exceptions to that immunity. Colvin v. Syrian Arab

Republic, 363 F. Supp. 3d 141, 152 (D.D.C. 2019) (citing

28 U.S.C. § 1604); see also Amerada Hess, 488 U.S. at

439 (“[T]he FSIA provides the sole basis for obtaining

jurisdiction over a foreign state in federal court[.]”).

Plaintiffs here invoke the FSIA terrorism exception, which

provides federal courts with subject-matter jurisdiction

over cases “in which money damages are sought against a

foreign state for personal injury or death that was caused”

by an enumerated act of terrorism. 28 U.S.C. § 1605A(a)(1);

see also 28 U.S.C. § 1330. Plaintiffs must prove three

elements to establish subject-matter jurisdiction under the

terrorism exception: (1) the foreign state was designated

as a state sponsor of terrorism when the act of terrorism

occurred and when this action was filed; (2) the claimant

or victim was a national of the United States at the time

of the act; and (3) the damages sought are for personal

injury or death caused by the act of terrorism.5 See Akins,

332 F. Supp. 3d at 32; 28 U.S.C. § 1605A. Plaintiffs have

met their burden at this stage on each of these elements.

5. The statute also requires a plaintiff to offer to arbitrate

a claim against a foreign state in that foreign state when the

acts causing injury occurred there. But here, the acts occurred

in Afghanistan, not Iran. Thus, Plaintiffs need not have offered

arbitration to establish subject-matter jurisdiction. See 28 U.S.C.

§ 1605A(a)(2)(A)(iii); ECF No. 10 ¶ 22; Winternitz v. Syrian Arab

Republic, No. 17-cv-2104 (TJK), 2022 U.S. Dist. LEXIS 60961, 2022

WL 971328, at *4 n.1 (D.D.C. Mar. 31, 2022).

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Appendix B

1. Iran Was Timely Designated a State

Sponsor of Terrorism

The State Department designated Iran a state

sponsor of terrorism in 1984, and the country has

remained so designated since. See Hamen v. Islamic

Republic of Iran, 401 F. Supp. 3d 85, 100 (D.D.C. 2019)

(first citing Determination Pursuant to Section 6(i) of

the Export Administration Act of 1979—Iran, 49 Fed.

Reg. 2836-02 (Jan. 23, 1984); and then citing U.S. Dep’t

of State, State Sponsors of Terrorism, https://www.state.

gov/j/ct/list/c14151.htm (last visited Mar. 21, 2023)). The

State Department even declared that “Iran remained the

most active state sponsor of terrorism” in 2009, the same

year as the Camp Chapman attack. U.S. Dep’t of State,

Country Reports on Terrorism 2008: Chapter 3: State

Sponsors of Terrorism (Apr. 30, 2009), https://2009-2017.

state.gov/j/ct/rls/crt/2008/122436.htm .

2. Plaintiffs Are U.S. Nationals

Wise, Paresi, and Plaintiffs were all United States

citizens at the time of the Camp Chapman attack. See ECF

No. 48 at 11; ECF No. 48-2 at 4-5; ECF No. 48-5 ¶¶ 2-3;

ECF No. 48-6 ¶ 2; ECF No. 48-7 ¶¶ 2-3; ECF No. 48-8

¶ 2; ECF No. 48-9 ¶ 2; ECF No. 48-10 ¶ 2; ECF No. 48-11

¶ 2; ECF No. 48-12 ¶ 2; see also 28 U.S.C. § 1605A(c)(4)

(A “legal representative,” like an estate, can bring suit

on behalf of a United States national under the FSIA

terrorism exception.). And United States citizens are

nationals for FSIA purposes. 28 U.S.C. § 1605A(h)(5); 8

U.S.C. § 1101(a)(22).

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Appendix B

3. Iran’s Actions Qualify for the Terrorism

Exception

The final element of the subject-matter jurisdiction

inquiry requires that Plaintiffs seek damages for personal

injury or death caused by the foreign state’s commission

of at least one terrorist act enumerated in the statute,

including “torture, extrajudicial killing, aircraft sabotage,

hostage taking, or the provision of material support or

resources for such an act.” 28 U.S.C. § 1605A(a)(1). As

described below, Plaintiffs have met their burden by

showing that: (1) Wise and Paresi were the victims of

the extrajudicial killing at Camp Chapman and (2) Iran’s

provision of financial, material, and logistical support to

al-Qaeda was a legally sufficient cause of the attack. See

ECF No. 10 at 10-21.

a. The Camp Chapman Attack Was an

Extrajudicial Killing

An “extrajudicial killing” for purposes of the FSIA

is defined via the Torture Victim Protection Act of 1991

as “a deliberated killing not authorized by a previous

judgment pronounced by a regularly constituted court

affording all the judicial guarantees which are recognized

as indispensable by civilized peoples. Such term, however,

does not include any killing that, under international law,

is lawfully carried out under the authority of a foreign

nation.” Torture Victim Protection Act, Pub. L. No. 102256, § 3(a), 106 Stat. 73, 73 (1991) (codified at 28 U.S.C.

§ 1350 note § 3A); 28 U.S.C. § 1605A(h)(7). The D.C. Circuit

has interpreted this text to include three elements: “(1) a

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Appendix B

killing; (2) that is deliberated; and (3) is not authorized by

a previous judgment pronounced by a constituted court.”

Hamen, 401 F. Supp. 3d at 101 (citing Owens, 864 F.3d

at 770).

The attack at Camp Chapman satisfies all three

elements for an “extrajudicial killing” under the FSIA.

First, al-Balawi detonated a suicide vest at Camp

Chapman, killing Wise, Paresi, and seven others. ECF No.

48-2 at 4. Second, the attack was deliberated; that is, it was

“undertaken with careful consideration, not on a sudden

impulse.” Hamen, 401 F. Supp. 3d at 101. Working with

top al-Qaeda operatives, al-Balawi portrayed himself as

a double agent for the United States embedded within the

organization, although he was really a triple agent. ECF

No. 48-1 at 40, 42. With al-Qaeda’s assistance, he produced

credible evidence that “signal[led] to Western intelligence

that he had succeeded in penetrating the group.” Id. at 40.

He then parlayed the CIA’s trust in him into a meeting at

Camp Chapman, where he planned to (and did) detonate

his suicide vest. Id. at 41. Al-Balawi even recorded videos

that al-Qaeda and others would distribute upon the

anticipated attack. Id. at 42. Third, there is no evidence

that the suicide bombing was authorized by a judgment

of a “regularly constituted court or [was] lawfully carried

out under the authority of a foreign nation.” Lee v.

Islamic Republic of Iran, 518 F. Supp. 3d 475, 492 (D.D.C.

2021). Thus, the Camp Chapman attack constitutes an

extrajudicial killing under the FSIA.6

6. Courts regularly find that suicide bombings, like the one at

issue, are extrajudicial killings. See, e.g., Wultz v. Islamic Republic

of Iran, 864 F. Supp. 2d 24, 34 (D.D.C. 2012) (suicide attack at an

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Appendix B

b. Iran’s Material Support Caused the

Camp Chapman Attack

Next, to “establish the court’s jurisdiction, the

plaintiffs in this case must show (1) [Iran] provided

material support to al-Qaeda and (2) its material support

was a legally sufficient cause of the [Camp Chapman

attack].” Owens, 864 F.3d at 778; see, e.g., W.A. v. Islamic

Republic of Iran, 427 F. Supp. 3d 117, 135-36 (D.D.C. 2019).

i. Pl a i nt i f f s H ave P r e s e nt e d

Evidence Sufficient to Show

that Iran Provided Material

Support to al-Qaeda and Related

Organizations

Under the relevant statute, material support or

resources is “any property, tangible or intangible, or

service, including currency or monetary instruments

or financial securities, financial services, lodging,

training, expert advice or assistance, safehouses,

false documentation or identification, communications

equipment, facilities, weapons, lethal substances,

explosives, personnel . . . and transportation, except

medicine or religious materials.” 18 U.S.C. § 2339A(b)(1);

see 28 U.S.C. § 1605A(h)(3) (defining “material support or

resources” under the FSIA to have the “meaning given

that term in section 2339A of title 18”).

Israeli restaurant); Owens v. Republic of Sudan, 826 F. Supp. 2d

128, 149-50 (D.D.C. 2011) (suicide bombings at two U.S. embassies);

Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 80 (D.D.C.

2006) (suicide bombing of an Israeli passenger bus).

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Appendix B

To start, Plaintiffs have presented sufficient evidence

that al-Qaeda and its allies were responsible for the attack

at Camp Chapman. They have established a clear link

between al-Balawi—the person who actually carried out

the suicide bombing—and various organizations, including

al-Qaeda and the TTP. In early 2009, the Jordanian

General Intelligence Directorate (“GID”) arrested,

held captive, and interrogated al-Balawi for jihadist

sympathies he shared online. ECF No. 48 at 9; ECF No.

48-1 at 39. Afterward, the GID continued to monitor

al-Balawi and ended up recruiting him to help the GID

and the CIA with their search for terrorists, including

al-Qaeda’s first-in-command, bin Laden, and second-incommand

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