Opposition Brief — AstraZeneca UK Limited, et al., Petitioners v. Joshua Atchley, et al.
Supreme Court briefAug 23, 2023
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No. 23-9
IN THE
Supreme Court of the United States
__________
ASTRAZENECA UK LIMITED, ET AL.,
Petitioners,
v.
JOSHUA ATCHLEY, ET AL.,
Respondents.
__________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the District of Columbia Circuit
__________
BRIEF FOR RESPONDENTS IN OPPOSITION
__________
August 23, 2023
DAVID C. FREDERICK
JOSHUA D. BRANSON
Counsel of Record
ANDREW E. GOLDSMITH
DEREK C. REINBOLD
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK,
P.L.L.C.
1615 M Street, N.W.
Suite 400
Washington, D.C. 20036
(202) 326-7900
(jbranson@kellogghansen.com)
QUESTIONS PRESENTED
Petitioners paid millions of dollars in cash and
in-kind bribes to the terrorist group Jaysh al-Mahdi.
That group had taken control of Iraq’s Ministry of
Health, and petitioners secured lucrative medicalsupply contracts from the Ministry by paying off the
terrorists in charge. Those bribes directly financed
Jaysh al-Mahdi’s attacks on Americans in Iraq.
Respondents were among the victims.
The D.C. Circuit held that respondents adequately
alleged aiding-abetting claims and proximate cause
under the Antiterrorism Act. See 18 U.S.C. § 2333(a),
(d)(2). Respondents alleged “in unusual detail,”
App.15a, how petitioners knew they were funding
terrorism, “foreseeably including the attacks against
[respondents],” App.39a-40a. Respondents also alleged
how the terrorist organization Hezbollah, which
co-founded Jaysh al-Mahdi, “committed, planned, or
authorized” each attack. 18 U.S.C. § 2333(d)(2).
After the D.C. Circuit’s decision, this Court held in
Twitter, Inc. v. Taamneh that aiding-abetting liability
under the ATA tracks the common law and requires
“conscious, voluntary, and culpable participation in
another’s wrongdoing.” 143 S. Ct. 1206, 1223 (2023).
The questions presented are:
1. Whether this Court needs to grant, vacate, and
remand in light of Twitter for the D.C. Circuit to
reconsider whether petitioners’ years of bribing terrorists was “conscious, voluntary, and culpable” conduct.
2. Whether respondents plausibly alleged that
petitioners’ corrupt payments to the Jaysh al-Mahdi
operatives at the Ministry foreseeably led to Jaysh
al-Mahdi’s terrorist attacks on respondents.
3. Whether respondents plausibly alleged that
Hezbollah “committed, planned, or authorized” Jaysh
al-Mahdi’s terrorist attacks on respondents.
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................ i
TABLE OF AUTHORITIES ...................................... iv
INTRODUCTION ....................................................... 1
STATEMENT .............................................................. 3
A. Statutory Background...................................... 3
B. Factual Background ......................................... 4
1. Jaysh al-Mahdi used Iraq’s Ministry
of Health as a vehicle for terrorism ........... 4
2. Petitioners knew their bribes to Jaysh
al-Mahdi funded terrorist attacks.............. 6
3. Jaysh al-Mahdi’s Hezbollah-sponsored
attacks killed or maimed respondents ........ 8
C. Procedural History ........................................... 9
REASONS FOR DENYING THE PETITION ......... 11
I. THE COURT SHOULD NOT GRANT,
VACATE, AND REMAND ............................. 11
A. There Is No Reasonable Probability
The D.C. Circuit Would Reach A
Different Result In Light Of Twitter ........ 12
1. After Twitter, as before, bribing
terrorists creates aiding-abetting
liability ................................................. 12
2. Petitioners fail to manufacture
conflict between Twitter and the
decision below ...................................... 16
B. Remand Will Not Change The
Outcome Of This Litigation ...................... 23
iii
C. A Remand Would Create Needless
Delay And Cost ......................................... 24
II. THE COURT SHOULD NOT GRANT
PLENARY REVIEW ...................................... 25
A. The D.C. Circuit’s ProximateCausation Holding Does Not Warrant
Review ....................................................... 25
B. The D.C. Circuit’s Aiding-Abetting
Holding Does Not Warrant Review.......... 28
C. Petitioners’ Policy Arguments Are
Unpersuasive ............................................ 32
D. The Interlocutory Posture Of This
Case Confirms That Review Is
Unwarranted............................................. 34
CONCLUSION.......................................................... 35
APPENDIX ............................................................... 1a
iv
TABLE OF AUTHORITIES
Page
CASES
Abbott v. Veasey, 137 S. Ct. 612 (2017) .................... 34
American Constr. Co. v. Jacksonville, T. & K.W.
Ry. Co., 148 U.S. 372 (1893)................................ 34
American Fam. Mut. Ins. Co. v. Grim, 440 P.2d
621 (Kan. 1968).................................................... 17
Bernhardt v. Islamic Republic of Iran, 47 F.4th
856 (D.C. Cir. 2022), cert. pet. pending,
No. 23-18 (U.S. July 3, 2023) .............................. 34
Boim v. Holy Land Found. for Relief & Dev.,
549 F.3d 685 (7th Cir. 2008) ..............18, 21, 22, 26
Camp v. Dema, 948 F.2d 455 (8th Cir. 1991) ......... 15,
16, 20
Clinton v. Jones, 520 U.S. 681 (1997) ...................... 24
Colon v. Twitter, Inc., 14 F.4th 1213 (11th Cir.
2021)................................................................30, 31
Crosby v. Twitter, Inc., 921 F.3d 617 (6th Cir.
2019)..........................................................26, 30, 31
Dandridge v. Jefferson Par. Sch. Bd., 404 U.S.
1219 (1971) .......................................................... 24
Failla v. City of Passaic, 146 F.3d 149 (3d Cir.
1998)..................................................................... 20
Fields v. Twitter, Inc., 881 F.3d 739 (9th Cir.
2018)..................................................................... 26
Fund of Funds, Ltd. v. Arthur Andersen & Co.,
545 F. Supp. 1314 (S.D.N.Y. 1982) ..................... 15
v
Gonzalez v. Google LLC:
2 F.4th 871 (9th Cir. 2021), rev’d sub nom.
Twitter, Inc. v. Taamneh, 143 S. Ct. 1206
(2023) ..............................................................30, 31
143 S. Ct. 1191 (2023) ....................................23, 24
Halberstam v. Welch, 705 F.2d 472 (D.C. Cir.
1983)...........................................................4, 15, 16,
17, 21, 22
Holmes v. Young, 885 P.2d 305 (Colo. App. 1994) ...... 21
Howard v. SEC, 376 F.3d 1136 (D.C. Cir. 2004) ....... 15
Jesner v. Arab Bank, PLC, 138 S. Ct. 1386
(2018) ..................................................................... 3
Keel v. Hainline, 331 P.2d 397 (Okla. 1958) .......16, 21
Kemper v. Deutsche Bank AG, 911 F.3d 383
(7th Cir. 2018).................................................27, 28
Keren Kayemeth LeIsrael – Jewish Nat’l Fund
v. Education for a Just Peace in the Middle
E., 66 F.4th 1007 (D.C. Cir. 2023) ................. 33-34
Lawrence ex rel. Lawrence v. Chater, 516 U.S.
163 (1996) ...........................................11, 12, 23, 24
Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118 (2014) ..................................... 25
Mount Soledad Mem’l Ass’n v. Trunk, 567 U.S.
944 (2012) ............................................................ 34
NFL v. Ninth Inning, Inc., 141 S. Ct. 56 (2020) ...... 34
Owens v. Republic of Sudan, 864 F.3d 751 (D.C.
Cir. 2017), vacated and remanded sub nom.
Opati v. Republic of Sudan, 140 S. Ct. 1601
(2020) ................................................................... 18
vi
Passaic Daily News v. Blair, 308 A.2d 649
(N.J. 1973)....................................................... 20-21
Radio Station WOW v. Johnson, 326 U.S. 120
(1945) ................................................................... 25
Reno v. Bossier Par. Sch. Bd., 520 U.S. 471
(1997) ................................................................... 22
Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013) ...26, 27
Sandoz Inc. v. Amgen Inc., 582 U.S. 1 (2017) .......... 32
Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023)... 1, 2,
3, 11, 12, 13,
14, 15, 16, 17, 18,
19, 20, 21, 22, 23, 26
United States v. Salamanca, 990 F.2d 629
(D.C. Cir. 1993) .................................................... 22
Wellons v. Hall, 558 U.S. 220 (2010) ........................ 23
Woods v. Barnett Bank of Ft. Lauderdale,
765 F.2d 1004 (11th Cir. 1985) ........................... 15
STATUTES AND RULES
Antiterrorism Act of 1990, 18 U.S.C. § 2331 et
seq...........................................................1, 2, 3, 4, 9,
11, 12, 19, 21, 23,
25, 26, 28, 32, 33, 34
18 U.S.C. § 2333(a) ................................................ 3
18 U.S.C. § 2333(d)(2) .......................2, 3, 17, 19, 29
Justice Against Sponsors of Terrorism Act,
Pub. L. No. 114-222, 130 Stat. 852 ............4, 25, 33
§ 2(a)(1), 130 Stat. 852 ........................................ 32
§ 2(a)(4), 130 Stat. 852 .......................................... 4
vii
§ 2(a)(5), 130 Stat. 852 .......................................... 4
§ 2(a)(6), 130 Stat. 852 .......................................... 4
§ 2(a)(7), 130 Stat. 852-53 ................................... 25
§ 2(b), 130 Stat. 853 ......................................... 4, 32
18 U.S.C. § 2333 note ............................................ 4
18 U.S.C. § 2339A ..................................................... 33
Sup. Ct. R. 10 ............................................................ 31
LEGISLATIVE MATERIALS
H.R. Rep. No. 115-858 (2018) ..................................... 3
S. Rep. No. 102-342 (1992) ................................... 3, 26
OTHER MATERIALS
Brief for the United States as Amicus Curiae,
Twitter, Inc. v. Taamneh, No. 21-1496 (U.S.
Dec. 6, 2022) ...................................................14, 18
Restatement (Third) of Torts: Liability for
Economic Harm (2020) ........................................ 16
INTRODUCTION
Respondents’ complaint alleges “in unusual detail,”
App.15a, how petitioners gave “millions of dollars
of cash and cash-equivalents” to an Iraqi terrorist
group called Jaysh al-Mahdi, App.7a. The reason
for petitioners’ bribes was simple: Jaysh al-Mahdi
had “completely overrun” Iraq’s Ministry of Health,
and petitioners secured lucrative contracts from that
Ministry by “giving corrupt payments” to the terrorists who ran it. App.5a, 7a. Petitioners knew their
bribes supplied Jaysh al-Mahdi with vital funding
for attacking Americans throughout Iraq. App.6a.
Respondents—American service members and civilians who served in Iraq, and their families—were
among the victims.
The D.C. Circuit properly held those allegations sufficient to plead aiding-abetting claims and proximate
cause under the Antiterrorism Act. Petitioners now
seek this Court’s review by rewriting both the opinion
below and the complaint it assessed, recasting themselves as innocent parties that merely “answered th[e]
call” to help rebuild Iraq. Pet.6. Such factual assertions do not merit certiorari.
Petitioners first seek a grant-vacate-remand order
in light of Twitter, Inc. v. Taamneh, 143 S. Ct. 1206
(2023), but that decision is consistent with the one
below. Twitter confirmed that centuries-old commonlaw principles govern aiding-abetting claims under
the ATA. Common-law courts look for culpable
conduct before finding aiding and abetting; here, the
D.C. Circuit concluded petitioners’ knowing bribes
to terrorists were culpable enough. There is no need
to remand just for the D.C. Circuit to reaffirm that
obvious result. Indeed, Twitter came out the other way
because its facts were different. The plaintiffs sought
to hold Twitter liable for mere inaction—failing to
2
exclude ISIS from its generally available social-media
platform—and this Court refused to extend liability
to such “passive actors.” Id. at 1222. Petitioners’
knowing bribes to terrorists were far more culpable.
Petitioners’ arguments for plenary review are no
more compelling. The D.C. Circuit rejected petitioners’ efforts to reinvent the Ministry as a “legitimate”
entity that precludes liability. Pet.18. As the complaint sets out in exhaustive detail, “Jaysh al-Mahdi
controlled the Ministry and used it as a terrorist headquarters.” App.7a. The Jaysh al-Mahdi–controlled
Ministry “was therefore not an independent intermediary” that breaks the causal link to Jaysh al-Mahdi’s
attacks. Id. Respondents’ detailed allegations likewise show that Hezbollah “committed, planned, or authorized” each attack at issue. 18 U.S.C. § 2333(d)(2).
Petitioners say that Hezbollah offered Jaysh al-Mahdi
only “general support,” Pet.4, but the D.C. Circuit
properly rejected that contention, App.25a-26a. Applying the ATA to these incriminating facts creates no
circuit split and risks none of the humanitarian
calamities petitioners and their amici imagine.
If the decision below truly posed a legal question
warranting review, petitioners would not need to
rewrite the complaint as they do. Their continued
distortion of the allegations—pretending (at 2, 23) that
this case is just about “sales of life-saving medicine”
or “rebuild[ing] troubled countries”—confirms that
certiorari is unwarranted. The allegations as pleaded
are far more incriminating. Respondents have been
waiting nearly six years for their claims to advance
past the pleading stage, and the Court should not
extend their wait just to reconsider petitioners’
unfounded factual disputes. The petition should be
denied.
3
STATEMENT
A. Statutory Background
The Antiterrorism Act authorizes American victims
of “an act of international terrorism” to bring a civil
action in federal court. 18 U.S.C. § 2333(a). It is “part
of a comprehensive statutory and regulatory regime
that prohibits terrorism and terrorism financing.”
Jesner v. Arab Bank PLC, 138 S. Ct. 1386, 1405 (2018)
(plurality). Congress intended the ATA’s private right
of action not only to “provid[e] victims of terrorism
with a remedy” but also to stop “the flow of money” to
terrorists. S. Rep. No. 102-342, at 22 (1992). Congress
thus designed the statute’s civil remedy to impose
“liability at any point along the causal chain of terrorism.” Id. By authorizing litigation to “cut[ ] terrorists’
financial lifelines,” Congress bolstered “longstanding
efforts to reduce global terrorism and thus protect
Americans here and abroad.” H.R. Rep. No. 115-858,
at 3-4 (2018).
As originally enacted, “the ATA did not explicitly
impose liability on anyone who only helped the terrorists carry out the attack or conspired with them.”
Twitter, 143 S. Ct. at 1217. So in 2016, Congress
enacted the Justice Against Sponsors of Terrorism
Act “to provide for a form of secondary civil liability.”
Id. U.S. terror victims now can sue those secondarily
liable for terrorist acts “committed, planned, or
authorized by” a designated terrorist organization.
18 U.S.C. § 2333(d)(2). Secondary liability extends to
anyone “who aids and abets, by knowingly providing
substantial assistance, or who conspires with the
person who committed such an act of international
terrorism” under § 2333(d)(2).
The statute’s text explains why Congress found it
“necessary to recognize the substantive causes of
4
action for aiding and abetting and conspiracy liability
under [the ATA].” JASTA § 2(a)(4), 130 Stat. 852
(reprinted in 18 U.S.C. § 2333 note). Secondary liability was needed, Congress found, because companies
that “contribute material support or resources . . . to
persons or organizations that pose a significant risk
of committing acts of terrorism” should “reasonably
anticipate being brought to court in the United
States.” Id. § 2(a)(6). Congress’s “purpose” in recognizing aiding-abetting liability was thus “to provide
civil litigants with the broadest possible basis . . .
to seek relief against” entities that send resources
“directly or indirectly” to terrorists. Id. § 2(b), 130
Stat. 853.
Congress further identified the standards courts
should use when considering ATA secondary-liability
claims. JASTA states that the D.C. Circuit’s decision
in Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983),
“which has been widely recognized as the leading case
regarding Federal civil aiding and abetting and
conspiracy liability, . . . provides the proper legal
framework for how such liability should function in
the context of [the ATA].” JASTA § 2(a)(5), 130 Stat.
852.
B. Factual Background
1. Jaysh al-Mahdi used Iraq’s Ministry of
Health as a vehicle for terrorism
a. Iraq’s Ministry of Health has a decades-long
history of corruption. C.A.App.111-13, 135-38, 150-51
(¶¶ 48-51, 105-111, 137-138); App.8a-9a. Under Saddam Hussein, the Ministry devised schemes to extract
kickbacks from medical-goods suppliers—including
petitioners—to funnel more than $1.5 billion to
Saddam’s regime. C.A.App.110-12, 114 (¶¶ 46, 49,
53). Those kickbacks aided the regime in funding
5
terrorism. Id. One petitioner, Johnson & Johnson,
later paid a large criminal fine for having admittedly
used the Ministry to bribe Saddam’s regime.
C.A.App.212 (¶ 273).
In late 2004, about 18 months after the United
States invaded Iraq and removed Saddam from power,
the Shi’ite terrorist group Jaysh al-Mahdi seized
control of the Ministry and its lucrative contracting
apparatus. C.A.App.98, 114-15, 118-23 (¶¶ 3 n.1, 54,
63-76). Jaysh al-Mahdi was founded and led by antiAmerican cleric Muqtada al-Sadr, with guidance and
direction from Hezbollah, the Lebanese terrorist
group. C.A.App.115-16 (¶¶ 56-59). From its Ministry
perch, Jaysh al-Mahdi rapidly became Iraq’s deadliest
terrorist group, responsible for more American casualties than even al-Qaeda. C.A.App.116-18 (¶¶ 58-62).
The Ministry was key to Jaysh al-Mahdi’s terrorist
enterprise. C.A.App.118-35 (¶¶ 63-104). It transformed the Ministry’s headquarters into a terrorist
base. C.A.App.127 (¶¶ 89-90). It converted Ministry
hospitals
into
command-and-control
centers.
C.A.App.125-26 (¶¶ 86-87). It placed thousands of terrorist fighters on the Ministry’s payroll. C.A.App.125
(¶ 85). And it used Ministry ambulances to transport
death squads around Baghdad.
C.A.App.125-26
(¶ 86). One senior Iraqi politician thus observed that
a more apt name for the Ministry of Health was the
“Ministry of Weapons Transportation.” Id.
b. Jaysh al-Mahdi used the Ministry to raise
funds for terrorism. C.A.App.135-38 (¶¶ 105-112).
Petitioners knowingly supplied those funds by making
“corrupt payments in both cash and goods to Jaysh
al-Mahdi.” App.12a; C.A.App.168-69 (¶ 176).
First, petitioners used local agents to deliver “cash
kickbacks to the terrorists who gave them business.”
6
App.5a-6a; C.A.App.153-63 (¶¶ 142-164). Petitioners
paid these bribes, called “commissions,” through
several mechanisms. C.A.App.160 (¶ 158). For example, petitioners included commercially unreasonable
“service clauses” in their contracts. C.A.App.99-100
(¶ 6). Under those clauses, petitioners funded illusory
services meant only to provide cover for passing on the
set-aside money as “commissions” to the terrorists
who ran the Ministry. Id.
Second, petitioners “delivered extra, off-the-books
batches of valuable medical goods that Jaysh
al-Mahdi monetized on the black market.” App.6a;
C.A.App.139-53 (¶¶ 114-141). Petitioners included
those “free goods” in the same shipments as the
“purchased goods” and packaged them for easy street
resale. C.A.App.99, 112-13, 140-42 (¶¶ 5, 50-51, 119120). Because Ministry officials did not have to
account for the extra goods, they were simple to
appropriate for terrorist aims. C.A.App.140-42, 147
(¶¶ 117-120, 132).
The “free goods” supplied Jaysh al-Mahdi with an
especially potent source of terrorist funding. Jaysh
al-Mahdi “finance[d] operations from diverted
medicines.” C.A.App.166 (¶ 169). And it often used
the free goods “as cash equivalents to pay terrorist
fighters.” App.6a; C.A.App.168-69 (¶ 176). Jaysh
al-Mahdi was so dependent on the Ministry’s resources
that it was known in Iraq as “The Pill Army.”
C.A.App.101, 168-69 (¶¶ 9, 176).
2. Petitioners knew their bribes to Jaysh
al-Mahdi funded terrorist attacks
Jaysh al-Mahdi’s control of the Ministry was no
secret. By late 2004, Jaysh al-Mahdi propaganda
festooned Ministry facilities throughout Iraq.
C.A.App.121-22 (¶ 73). Pictures of Muqtada al-Sadr
7
decorated the walls alongside terrorist slogans such as
“Death to America.” Id. Jaysh al-Mahdi’s all-black
flag adorned entrances to Ministry buildings, and
Jaysh al-Mahdi fighters patrolled the halls. Id.
(¶¶ 73-75). As the U.S. Embassy concluded in a 2006
report, the Ministry and its infrastructure were
“openly under the control” of Jaysh al-Mahdi.
C.A.App.123 (¶ 79).
Petitioners understood that their corrupt payments
to Jaysh al-Mahdi financed terrorist attacks. Petitioners “finalized their contracts at the Ministry headquarters surrounded by terrorist propaganda and
other indicia of Jaysh al-Mahdi’s control.” App.13a;
C.A.App.142, 170-71 (¶¶ 121, 180-181). Petitioners
retained local agents who knew that Jaysh al-Mahdi
raised funds through the Ministry. C.A.App.171-72
(¶ 182). And each petitioner had a “corporate security”
and compliance operation that exposed it to extensive
public and nonpublic reporting connecting the Ministry to Jaysh al-Mahdi terrorism. C.A.App.172-76
(¶¶ 183-186). One such article from 2007 reported
that “[s]upplies and medicine . . . ha[d] been siphoned
off and sold elsewhere for profit because of corruption
in the Iraqi Ministry of Health,” which was “in the
‘grip’ of the Mahdi Army, the anti-American militia
run by the Shiite cleric Muqtada al-Sadr.”
C.A.App.174 (¶ 183) (emphases omitted).
Petitioners are 21 defendants from 5 corporate
families: AstraZeneca, C.A.App.105 (¶¶ 17-18); GE
Healthcare, id. (¶¶ 19-21); Johnson & Johnson,
C.A.App.106 (¶¶ 22-29); Pfizer, C.A.App.107 (¶¶ 3034); and Roche, C.A.App.107-08 (¶¶ 35-37). For each
petitioner, respondents specify multiple cash bribes it
paid; describe the corrupt local agents it used to pay
the bribes; and identify its contract numbers and “free
8
goods” percentages. C.A.App.177-87 (¶¶ 188-209)
(AstraZeneca); C.A.App.187-200 (¶¶ 210-244) (GE
Healthcare); C.A.App.200-14 (¶¶ 245-280) (Johnson
& Johnson); C.A.App.214-27 (¶¶ 281-309) (Pfizer);
C.A.App.227-36 (¶¶ 310-332) (Roche).
3. Jaysh
al-Mahdi’s
Hezbollah-sponsored
attacks killed or maimed respondents
Petitioners’ payments financed Jaysh al-Mahdi’s
terrorist attacks against respondents in Iraq. The
U.S. military viewed Jaysh al-Mahdi as a “terrorist
organization” more lethal than al-Qaeda in Iraq, the
terrorist group that became ISIS. C.A.App.242-43
(¶¶ 347-348). Jaysh al-Mahdi’s threat reflected its
mastery of sophisticated, Hezbollah-taught terrorist
tactics. C.A.App.238-41 (¶¶ 338-346). Most lethal
were explosively formed penetrators, which were
devices designed to penetrate American tank armor.
C.A.App.239-40 (¶¶ 341-342). Jaysh al-Mahdi used
penetrators and other weaponry to kill and injure
respondents. C.A.App.103, 239-41 (¶¶ 14, 339-346).
The U.S. government did not designate Jaysh
al-Mahdi as a Foreign Terrorist Organization.
C.A.App.246-47 (¶¶ 355-356). But Hezbollah, designated since 1997, was key to Jaysh al-Mahdi’s terrorist attacks. C.A.App.247-50 (¶¶ 357-363). Jaysh
al-Mahdi publicly declared that association, chanting
“We are Hezbollah” at rallies and marching under
Hezbollah’s flag. C.A.App.104 (¶ 15). Indeed, Hezbollah co-founded Jaysh al-Mahdi as its Iraqi proxy;
recruited Iraqis to join its ranks; designed Jaysh
al-Mahdi’s terrorist tactics; instructed Jaysh al-Mahdi
fighters how to deploy them; and planned and authorized the attacks that followed.
C.A.App.250-74
(¶¶ 364-407). Hezbollah also provided penetrators—
weapons “exclusively associated with” Hezbollah,
9
C.A.App.266 (¶ 395)—to Jaysh al-Mahdi and taught
the group’s fighters how to use them. App.25a-26a;
C.A.App.265-66 (¶¶ 395-396). And joint Hezbollah–
Jaysh al-Mahdi cells committed at least 22 of the
attacks at issue, injuring 35 respondents. App.20a-21a.
All told, Hezbollah “provided vital and concrete support without which the attacks that injured [respondents] could not have occurred.” Commanders C.A.
Br. 10, 2021 WL 1599301.
C. Procedural History
1. Respondents are U.S. citizens, and their
families, whom Jaysh al-Mahdi killed or injured
between 2005 and 2011. C.A.App.274-631 (¶¶ 4093180). Every respondent brings two direct-liability
claims, C.A.App.638-41 (¶¶ 3208-3221), and two
aiding-abetting claims, C.A.App.632-38 (¶¶ 31813207), under the ATA. They also assert state-law
claims for the same misconduct. C.A.App.641-46
(¶¶ 3222-3254).
The district court dismissed respondents’ claims.
The court recognized that petitioners “knowingly
provided medical goods to the Ministry for economic
gain and were aware those goods would be used
by [Jaysh al-Mahdi] to support terrorist attacks.”
App.95a. And it accepted that Jaysh al-Mahdi
“ ‘captured’ the Ministry” and that petitioners “engaged
in corrupt transactions with that compromised
entity.” App.83a. But it held that the Jaysh alMahdi–controlled Ministry’s role in the transactions
broke “the causal chain” to Jaysh al-Mahdi, precluding proximate cause and aiding-abetting liability.
App.86a-87a. It also held that no designated organization committed, authorized, or planned most of the
relevant attacks. App.90a-92a.
10
2. A unanimous panel of the D.C. Circuit reversed
in full. It credited the allegations that “[petitioners],
aware of Jaysh al-Mahdi’s command of the Ministry,
secured lucrative medical-supply contracts with the
Ministry by giving corrupt payments and valuable
gifts to Jaysh al-Mahdi.” App.5a. Based on the
“unusual[ly] detail[ed]” complaint, App.15a, the court
concluded petitioners were “[a]ware of Jaysh
al-Mahdi’s ongoing terrorist operations” yet still
gave “the organization millions of dollars of cash and
cash-equivalents over a period of many years,”
App.7a. Those allegations, the court held, sufficed “at
the motion-to-dismiss stage” to plead aiding-abetting
claims and proximate causation. App.6a.
As relevant here, the D.C. Circuit reversed on three
issues. First, it held that respondents “plausibly
allege that Hezbollah both planned and authorized
the attacks against them.” App.23a. Not only had
Hezbollah itself “allegedly committed twenty-two
of the attacks at issue here,” App.20a-21a, but its
“alleged involvement in planning the [other] attacks
that injured and killed [respondents] was deep and far
reaching,” App.25a, and its “religious, personal, and
operational authority over Jaysh al-Mahdi show[s]
that it ‘authorized’ the attacks as well,” App.26a.
Second, the court held that respondents plausibly
alleged that petitioners “aided and abetted acts of
international terrorism.” App.7a. “[O]n balance,”
petitioners’ “alleged awareness that, by bribing the
Ministry, they were funding” Jaysh al-Mahdi’s
“attacks on Americans” stated a valid claim. App.35a36a.
Third, the court reversed on causation because “[i]t
was reasonably foreseeable that financially fortifying
Jaysh al-Mahdi would lead to the attacks that [respon-
11
dents] suffered.” App.43a. The court distinguished
the Ministry from “independent intermediar[ies]” that
defeated causation in other cases. App.44a. Petitioners’ efforts to reframe the Ministry as an intermediary, the court noted, “rest[ed] on an untenably skeptical reading of the complaint.” App.45a.
The D.C. Circuit “remand[ed] the balance of the
issues” to the district court. App.6a. On direct liability,
the court of appeals reached only causation and told
the district court “to consider in the first instance”
petitioners’ other arguments. App.40a. More broadly,
it recognized that “[petitioners] plan to dispute many
of the facts alleged.” App.8a. It invited petitioners to
support their factual narrative—about, for example,
the “nature and context of any U.S. [government] dealings with the Ministry”—through further “evidentiary
development” on remand. App.48a.
3. Petitioners sought rehearing en banc. The D.C.
Circuit denied rehearing without dissent. App.1a.
REASONS FOR DENYING THE PETITION
I. THE COURT SHOULD NOT GRANT,
VACATE, AND REMAND
This Court’s power to issue a grant-vacate-remand
order “should be exercised sparingly.” Lawrence ex
rel. Lawrence v. Chater, 516 U.S. 163, 173 (1996) (per
curiam). The petition meets none of the traditional
requirements for a GVR. First, there is no “reasonable
probability” that Twitter would lead the D.C. Circuit
to reach a different result on remand. Id. at 167.
Twitter affirmed that the ATA, like the common law,
requires culpable conduct for aiding-abetting liability.
That narrow holding casts no doubt on the result
below—bribing terrorists is, of course, culpable.
Second, petitioners cannot show that “redetermination
may determine the ultimate outcome of the litigation.”
12
Id. No matter the result on respondents’ ATA aidingabetting claims, their direct-liability and state-law
claims will move forward. Third, “the delay and
further cost entailed in a remand are not justified
by the potential benefits of further consideration.” Id.
at 168. This case has languished at the motion-todismiss stage for almost six years. Nineteen respondents have died waiting for discovery to start. The
Court should not compound that delay with a needless
remand.
A. There Is No Reasonable Probability The
D.C. Circuit Would Reach A Different
Result In Light Of Twitter
1. After Twitter, as before, bribing terrorists creates aiding-abetting liability
Twitter does not warrant vacatur because it changed
none of the secondary-liability “premise[s]” grounding
the decision below. Lawrence, 516 U.S. at 167. A GVR
is thus not even “potentially appropriate” here. Id.
a. In the D.C. Circuit, aiding-abetting liability
is the same after Twitter as it was before. Twitter
reaffirmed the “deep-rooted common-law basis” for
aiding-abetting liability. 143 S. Ct. at 1223. It
instructed courts considering ATA aiding-abetting
claims to look for the same conduct “that has animated
aiding-and-abetting liability for centuries”: “conscious,
voluntary, and culpable participation in another’s
wrongdoing.” Id. As Justice Jackson noted, the
Court’s unanimous decision was “narrow in important
respects.” Id. at 1231 (Jackson, J., concurring).
The allegations in Twitter fell far short of the mark.
The social-media companies there passively “failed
to stop ISIS” from misusing their “generally available
virtual platforms.” Id. at 1230 (majority). They
committed no “affirmative misconduct” at all—they
13
just inadequately policed their platforms—and the
allegations of “mere passive nonfeasance” did not
state a claim. Id. at 1227. As the Court noted, “both
tort and criminal law have long been leery of imposing
aiding-and-abetting liability for mere passive nonfeasance.” Id. Aiding and abetting requires more,
“lest mostly passive actors like banks become liable for
all of their customers’ crimes by virtue of carrying out
routine transactions.” Id. at 1222.
The D.C. Circuit applied Twitter’s common-law rule
to starkly different allegations. As the court explained,
petitioners engaged in the “corrupt provision of free
goods and cash bribes to do business with a Ministry
completely overrun by Jaysh al-Mahdi.” App.6a-7a.
Those transactions—knowingly providing terrorists
with “cash kickbacks” and “off-the-books batches
of valuable medical goods”—showed the requisite
culpability. App.5a-6a. Such active malfeasance is
nothing like the “passive nonfeasance” Twitter held
inadequate.
Twitter’s disparate treatment of the “allegations
specific to Google” illustrates the point. 143 S. Ct. at
1230. Unlike Twitter, Google allegedly “shared advertising revenue with ISIS.” Id. In assessing those
funding allegations, the Court invoked none of the
common-law principles that had proved fatal to the
earlier passive-inaction theory. Rather, the Court
affirmed dismissal of the advertising-revenue allegations for a different reason: the plaintiffs “allege[d]
nothing about the amount of money that Google supposedly shared” or “the number of accounts” involved.
Id. Faced with a bare-bones complaint in which
the amount of money paid could have been “only $50,”
the Court held that, “[w]ithout more,” the plaintiffs
had “not plausibly alleged” that the funding was
14
substantial assistance. Id. Respondents’ claims
suffer from no such flaw. App.33a (assistance was
“at least several million dollars per year”).
b. Twitter all-but-expressly endorsed liability on
the facts here. The Court confirmed that aidingabetting liability remains available in cases involving
“affirmative misconduct.” 143 S. Ct. at 1227. And the
Court explained that “some set of allegations involving aid to a known terrorist group would justify holding a secondary defendant liable for all of the group’s
actions or perhaps some definable subset of terrorist
acts.” Id. at 1228. A prime example, the Court said,
would be “where [a] provider of routine services does
so in an unusual way or provides such dangerous
wares that selling those goods to a terrorist group
could constitute aiding and abetting.” Id. And one
way a medical “distributor” could act culpably, the
Court observed, would be to deliver medicines “far in
excess of normal amounts.” Id. (citing case involving
“morphine distributor[’s]” secondary liability).
Petitioners did just what the Court’s example
contemplated. Indeed, the United States highlighted
that very point in its amicus brief in Twitter, opposing
liability for Twitter but explicitly supporting respondents’ claims here because petitioners “engaged in
transactions outside the regular course of business”
through “ ‘the corrupt provision of free goods and cash
bribes.’ ” Brief for the United States as Amicus Curiae
at 22, Twitter, Inc. v. Taamneh, No. 21-1496 (U.S.
Dec. 6, 2022) (“U.S. Twitter Amicus Br.”) (quoting
App.31a).
c. None of this is novel. The common law long has
held defendants liable as aiders and abettors for far
less culpable conduct than bribing terrorists.
15
First, common-law courts often find aiding-abetting
liability when the defendant aids the primary actor
under “unusual circumstances.” Halberstam, 705
F.2d at 487.1 In Halberstam, for example, Linda
Hamilton’s back-office work supported her liability for
murder because she had reason to suspect her partner
was committing nighttime property crimes, and her
performance of services “in an unusual way under
unusual circumstances” suggested she knew what
she was doing was illegal. Id. Similarly, in Woods v.
Barnett Bank of Fort Lauderdale, the court inferred a
bank’s “knowing assistance” to a fraud “from atypical
business actions,” including writing a reference letter
for an underwriter “without even minimal investigation.” 765 F.2d 1004, 1012 (11th Cir. 1985); see Twitter, 143 S. Ct. at 1222 (citing Woods).
The allegations of knowing illegal conduct are at
least as strong here. Petitioners engaged in “atypical
business transactions,” Camp v. Dema, 948 F.2d 455,
459 (8th Cir. 1991), structuring their bribes to provide
Jaysh al-Mahdi with extra batches of in-kind drugs
and medical devices—for free—on top of the paid-for
drugs, C.A.App.139-53 (¶¶ 116-141). They included
those free goods in the same shipments as the
purchased goods, packaging them for easy resale on
the black market. C.A.App.99, 112-13, 140-42 (¶¶ 5,
50-51, 119-120). And petitioners’ agents negotiated
the bribes at meetings inside the Ministry’s headquarters, surrounded by posters paying homage to
known terrorist Muqtada al-Sadr; Jaysh al-Mahdi’s
1 See also, e.g., Howard v. SEC, 376 F.3d 1136, 1149 (D.C. Cir.
2004) (collecting cases involving brokers aiding and abetting
securities violations by completing transactions despite “red
flags”); Fund of Funds, Ltd. v. Arthur Andersen & Co., 545 F.
Supp. 1314, 1356 (S.D.N.Y. 1982) (similar).
16
unmistakable flag; terrorist fighters and weapons;
and “Death to America” slogans. Giving aid under
such unusual circumstances would support aidingabetting liability even “with a minimal showing of
knowledge.” Camp, 948 F.2d at 459; see App.30a. But
here, the allegations of knowledge are substantial:
even the district court acknowledged that petitioners
“were aware” that the goods they gave Jaysh al-Mahdi
“would be used . . . to support terrorist attacks.”
App.95a; see App.35a.
Second, common-law courts often find aidingabetting liability when the defendant actively aided
especially blameworthy conduct. Halberstam suggested
a “proportionality test” under which “a defendant’s
responsibility for the same amount of assistance
increases with the blameworthiness of the tortious act.”
705 F.2d at 484 n.13. For example, Keel v. Hainline
involved students throwing erasers at one another
in a classroom. 331 P.2d 397, 399 (Okla. 1958). This
“creation of a free-for-all” was blameworthy enough
for the court to find “even a minimally-involved participant liable.” Halberstam, 705 F.2d at 484.
Jaysh al-Mahdi’s terrorist attacks are far more
blameworthy. Any aid to conduct so heinous—even
“relatively trivial” aid—is culpable. Id. at 484 n.13;
see Restatement (Third) of Torts: Liability for Economic
Harm § 28 cmt. d (2020) (“the enormity of a wrong . . .
may appropriately cause such lesser acts to be considered aiding and abetting”). Petitioners’ multi-milliondollar aid to Jaysh al-Mahdi easily clears that low bar.
2. Petitioners fail to manufacture conflict
between Twitter and the decision below
Petitioners purport to identify mismatches between
Twitter and the decision below. None exists.
17
a. Nexus. Secondary liability turns on whether the
defendant aided and abetted an act of international
terrorism. See 18 U.S.C. § 2333(d)(2). Petitioners
argue that the D.C. Circuit erred by focusing on aid to
Jaysh al-Mahdi, not “the specific attacks that injured
respondents.” Pet.14. But the court did focus on
“Jaysh al-Mahdi’s terrorist acts against [respondents],”
concluding that petitioners “aided and abetted those
attacks.” App.39a (emphasis added). Petitioners quote
(at 14) part of this sentence but omit the language
inconvenient to their position.
In any event, petitioners, like Twitter, “overstate
the nexus that § 2333(d)(2) requires between the
alleged assistance and the wrongful act.” Twitter, 143
S. Ct. at 1224. In fact, the statute “does not always
demand a strict nexus between the alleged assistance
and the terrorist act.” Id. at 1225; see App.39a
(“Substantial assistance to the ultimate deed . . . is
enough.”). A defendant “can be held liable for other
torts that were ‘a foreseeable risk’ of the intended
tort.” Twitter, 143 S. Ct. at 1225 (quoting Halberstam,
705 F.2d at 488); see id. at 1228 (describing “aiding
and abetting a foreseeable terror attack”). And a
defendant may be liable for “every single” attack by a
terrorist group if the defendant “affirmatively gave
aid that would assist each of [those] terrorist acts.” Id.
The common law outlines which risks are foreseeable. For example, Halberstam held that “violence and
killing is a foreseeable risk” of property crimes. 705
F.2d at 488. And American Family Mutual Insurance
Co. v. Grim held that a fire from lit torches was a foreseeable risk of a nighttime break-in. 440 P.2d 621,
626 (Kan. 1968); see Twitter, 143 S. Ct. at 1224-25
(discussing Grim). By contrast, a terrorist attack on a
nightclub was not a foreseeable risk of Twitter’s
18
“arm’s length, passive, and largely indifferent” relationship with ISIS. Id. at 1227.
Jaysh al-Mahdi’s attacks on respondents were the
foreseeable result of petitioners’ funding. In general,
bankrolling terrorists creates a foreseeable risk of
terrorist attacks. See, e.g., Boim v. Holy Land Found.
for Relief & Dev., 549 F.3d 685, 690-91 (7th Cir. 2008)
(en banc) (explaining importance of “financial angels”
to terrorist operations); Owens v. Republic of Sudan,
864 F.3d 751, 783, 794 (D.C. Cir. 2017) (“actively
promot[ing] al Qaeda’s businesses” proximately caused
al-Qaeda’s attacks), vacated and remanded on other
grounds sub nom. Opati v. Republic of Sudan, 140
S. Ct. 1601 (2020). And here specifically, petitioners’
“affirmative[ ] . . . aid” to Jaysh al-Mahdi “assist[ed]
each of [the group’s] terrorist acts” against respondents. Twitter, 143 S. Ct. at 1228; see C.A.App.10001, 163-76 (¶¶ 8-9, 165-186). The D.C. Circuit made
this point twice. It reversed on aiding-abetting
because petitioners’ “substantial assistance to Jaysh
al-Mahdi” aided the group’s “terrorist attacks, foreseeably including the attacks against [respondents].”
App.39a-40a. And it reversed on proximate cause
because it was “reasonably foreseeable” that petitioners’ aid “would lead to the attacks that [respondents]
suffered.” App.43a; see also U.S. Twitter Amicus Br.
34 (citing this holding and noting that “a secondary
defendant’s contributions may have a sufficient nexus
to a terrorist act” if, as here, they involve “the direct
channeling of substantial funds”). Such a factual
nexus—tying petitioners’ aid to Jaysh al-Mahdi to
each individual attack—suffices under any plausible
reading of Twitter.
Petitioners also did more than fund terrorists from
afar. They bribed Jaysh al-Mahdi terrorists in the
19
same building from which those terrorists carried
out attacks. As the D.C. Circuit recognized, Jaysh
al-Mahdi used “its takeover of the Ministry” not only
“to fund” its “terrorist acts,” but also to “facilitate”
them. App.31a. Jaysh al-Mahdi commanders often
led attacks from the building’s roof. C.A.App.127
(¶¶ 89-90). And the group used Ministry ambulances
to ferry death squads and weapons around Baghdad.
C.A.App.125-26 (¶ 86). In one attack, Jaysh al-Mahdi
even rigged a Ministry ambulance with explosives and
used it to attack respondents Staff Sergeant John
Kirby, C.A.App.295-96 (¶¶ 559-563); Corporal Anthony
Donald Pellecchia, C.A.App.303-04 (¶¶ 621-626); and
Private First Class Andrew Fukuzawa, C.A.App.35859 (¶¶ 1075-1077). The attenuated nexus the Court
rejected in Twitter is not comparable.
b. Knowledge and Substantiality. The ATA
requires defendants to have “knowingly provid[ed]
substantial assistance” to terrorist acts. 18 U.S.C.
§ 2333(d)(2). Petitioners fault the D.C. Circuit for not
considering these elements—knowledge and substantiality—“in tandem.” Pet.15. But the court did just
that. In the section of its opinion titled “Knowing
and Substantial Assistance,” App.31a-37a, the
court held that, “on balance, [petitioners’] alleged
state of mind supports substantial assistance,”
App.36a. In so holding, the court engaged in the very
analysis petitioners demand, reasoning that petitioners’ “awareness . . . they were funding an entity’s
terrorist attacks on Americans in Iraq drives home the
substantial character of their aid.” App.35a.
There is no daylight between Twitter and the decision below on § 2333(d)(2)’s knowledge and substantiality requirement. This requirement aims “to capture
conscious and culpable conduct,” Twitter, 143 S. Ct. at
20
1229, so it calls for courts to balance “the nature and
amount of assistance” with “the defendant’s scienter,”
id. at 1223. For example, “[a] party who engages in
atypical business transactions . . . may be found liable
as an aider and abettor with a minimal showing of
knowledge.” Camp, 948 F.2d at 459. On the other
hand, “a party whose actions are routine and part
of normal everyday business practices would need
a higher degree of knowledge for liability as an
aider and abettor to attach.” Id. “[L]ess substantial
assistance require[s] more scienter,” and “vice versa.”
Twitter, 143 S. Ct. at 1222.
The D.C. Circuit properly balanced those considerations. As the court explained in detail, petitioners’
assistance to Jaysh al-Mahdi was both knowing and
substantial. Petitioners “gave significant funding to
Jaysh al-Mahdi.” App.37a. They knew their bribes
“supported the terrorist acts of a notoriously violent
terrorist organization that had overrun the Ministry
of Health.” App.34a. And those terrorist acts “foreseeably includ[ed] the attacks against [respondents].”
App.39a-40a. Given those findings, petitioners are
incorrect to suggest that the D.C. Circuit “asked only
whether [they] allegedly acted ‘with a general awareness’ of supporting ‘terrorist acts.’ ” Pet.15-16 (quoting
App.34a). The court’s conclusions about petitioners’
knowing conduct were far stronger.
c. Intent. Petitioners next fault the D.C. Circuit
for not giving greater weight to their purported lack
of intent to support terrorism. Pet.16. But nothing
in the common law or Twitter requires an aidingabetting defendant to share the primary wrongdoer’s
specific intent.2 Common-law cases illustrate that
2 See, e.g., Failla v. City of Passaic, 146 F.3d 149, 157-58 (3d
Cir. 1998) (rejecting shared-intent requirement); Passaic Daily
21
point. In Keel, the defendant had no “intent to injure”
the plaintiff. 331 P.2d at 399. In Halberstam, Hamilton knew nothing about the murder, so she could not
have specifically intended it. 705 F.2d at 488. And in
Grim, as Twitter recounted, the defendant was “liable
for aiding and abetting the burning of a building” even
though he did not know that “the others lit torches to
guide them through the dark and accidentally started
a fire.” 143 S. Ct. at 1224-25.
Under the common law, then, a defendant may be
liable as an aider and abettor for substantially assisting the primary offense, no matter their subjective
intent. That rule makes particular sense under the
ATA because “[t]o require proof that [a defendant]
intended that his contribution be used for terrorism”
would functionally “eliminate . . . liability except in
cases in which the [defendant] was foolish enough to
admit his true intent.” Boim, 549 F.3d at 698-99.
Twitter applied the same rule to different facts.
Because the plaintiffs there alleged only that the
defendants “fail[ed] to stop ISIS from using the[ir]
platforms,” 143 S. Ct. at 1227, the plaintiffs had to
make stronger allegations of “scienter before [the]
court could infer conscious and culpable assistance,”
id. at 1222. Twitter’s “undisputed lack of intent to
support ISIS” mattered only because the plaintiffs’
nonfeasance theory was so dubious to begin with. Id.
at 1229-30. Indeed, the Court did not even mention
intent when addressing the funding allegations against
Google. Id. at 1230; see supra pp. 13-14.
In any event, petitioners’ knowing payments to
Jaysh al-Mahdi support an inference of terrorist
News v. Blair, 308 A.2d 649, 656-57 (N.J. 1973) (same); Holmes
v. Young, 885 P.2d 305, 309 (Colo. App. 1994) (“wrongful intent
is not necessary” for aiding-abetting liability).
22
intent. Common-law courts presume that “people
usually intend the natural consequences of their
actions.” Reno v. Bossier Par. Sch. Bd., 520 U.S. 471,
487 (1997); see United States v. Salamanca, 990 F.2d
629, 636 n.2 (D.C. Cir. 1993). And here petitioners
fostered “a set of enduring, carefully cultivated
relationships consisting of scores of transactions over
a period of years.” App.37a. Whatever petitioners
subjectively desired, the law presumes they intended
the natural consequences of their years of terrorist
payoffs. See Boim, 549 F.3d at 693-94. So no matter
where the bar is for intent, respondents have cleared
it.
d. Petitioners’ last argument—that the D.C. Circuit
hewed too tightly to Halberstam, Pet.14-15—is
incorrect. Twitter explained that the factors from
Halberstam should guide the analysis but “should ‘not
be accepted as immutable components.’ ” 143 S. Ct.
at 1220 (quoting Halberstam, 705 F.2d at 489). The
court below agreed: “[n]o [Halberstam] factor alone
is dispositive, and the weight of each varies with the
circumstances of the particular claim.” App.31a. At
any rate, the reason Twitter cautioned against a
“rigid[ ] focus[ ] on” Halberstam’s facts and elements
was so courts would not lose sight of “the essence
of aiding and abetting”: whether the defendants’
“participation” was “significant and culpable enough
to justify attributing the principal wrongdoing to”
them. 143 S. Ct. at 1223, 1229. The D.C. Circuit
aimed squarely at that key issue, concluding that
petitioners’ “knowing[ ]” and “substantial assistance”
to Jaysh al-Mahdi “aided and abetted” the group’s
“terrorist acts against [respondents].” App.39a.
23
B. Remand Will Not Change The Outcome Of
This Litigation
A GVR also is unwarranted because any alleged
error in addressing aiding-abetting liability would not
“determine the ultimate outcome of the litigation.”
Lawrence, 516 U.S. at 167.
As petitioners
acknowledge, Twitter “involved only an aiding-andabetting claim.” Pet.16. But here, respondents allege
direct liability as well as state-law violations, including for intentional infliction of emotional distress,
assault and battery, wrongful death, and survival.
C.A.App.638-46 (¶¶ 3208-3254). Thus, “the decision
below does not ‘rest upon’ the objectionable faulty
premise, but is independently supported by other
grounds.” Wellons v. Hall, 558 U.S. 220, 227 (2010)
(Scalia, J., dissenting, joined by Thomas, J.); see also
id. at 228-29 (Alito, J., dissenting, joined by Roberts,
C.J.) (Court should not GVR when judgment below
“rests on two independent grounds”); id. at 224-25
(majority, per curiam) (agreeing).
Petitioners argue that Twitter affects direct liability
because elements of aiding-abetting liability and
proximate causation “play similar roles” in “limiting
liability.” Pet.16. But the same is true of every element of every tort claim—all elements “limit” liability
to only plaintiffs who can make the requisite showing.
Twitter did not reference causation, nor did its discussion of common-law aiding-abetting principles purport
to change the standard for evaluating proximate cause
under the ATA. Petitioners’ reference to the remand
in Gonzalez v. Google LLC, 143 S. Ct. 1191 (2023) (per
curiam), does not show otherwise. The direct-liability
claims there failed due to a lack of any predicate act
of material support for terrorism. See id. at 1192.
The plaintiffs “did not seek review” of that holding;
24
instead, they said they would seek “leave to amend
their complaint” on remand. Id. That statement
is irrelevant to the viability of respondents’ directliability (much less their state-law) claims here.
C. A Remand Would Create Needless Delay
And Cost
The “equities of the case” also weigh against
remand. Lawrence, 516 U.S. at 167-68. A GVR “is
inappropriate” if “the delay and further cost entailed
in a remand are not justified by the potential benefits
of further consideration.” Id. at 168. Here, respondents’ interests in moving forward dwarf the minimalat-best benefits of having the D.C. Circuit reconsider
its ruling.
Respondents filed this case nearly six years ago.
During the half-decade spent litigating petitioners’
serial motions to dismiss, no discovery has occurred.
Nineteen respondents have died waiting for discovery
to start. C.A.Doc. #1983137, at 3. Further “delaying”
the case with a GVR “increase[s] the danger of
prejudice resulting from the loss of evidence . . . or the
possible death of a party.” Clinton v. Jones, 520 U.S.
681, 707-08 (1997). The case should proceed before
any more years pass or any more respondents die. Cf.
Dandridge v. Jefferson Par. Sch. Bd., 404 U.S. 1219,
1220 (Marshall, Circuit Justice 1971) (denying stay
when parties “ha[d] been mired in litigation for seven
years”); Lawrence, 516 U.S. at 168 (this Court’s
approach to GVR orders “is similar” to its “longstanding approach to applications for stays”).
Remand also disserves the public interest. Congress
found that it was in the “vital interest” of the United
States for victims of terrorist attacks to have “full
access to the court system” to pursue claims against
entities that provide “resources, directly or indirectly,”
25
to terrorists. JASTA § 2(a)(7), 130 Stat. 852-53.
Remand undermines that vital interest by further
delaying respondents’ ability to advance to discovery,
trial, and recovery. See Radio Station WOW v. Johnson, 326 U.S. 120, 124 (1945) (identifying “delayed justice” as a key reason to avoid interlocutory appeals).
II. THE COURT SHOULD NOT GRANT
PLENARY REVIEW
Petitioners’ arguments for plenary review are the
same ones they made in their rehearing petitions in
the D.C. Circuit. Those arguments garnered no votes
below, and they fail here.
A. The D.C. Circuit’s Proximate-Causation
Holding Does Not Warrant Review
The D.C. Circuit properly held that respondents
“adequately alleged proximate causation” and remanded
on the other direct-liability arguments. App.40a.
That holding implicates no circuit split. Petitioners’
interlocutory, factbound disagreement (Pet.17-20)
with the D.C. Circuit’s holding does not merit review.
1. The D.C. Circuit’s proximate-causation holding
is correct. Petitioners “gave both cash and cash equivalents” to Jaysh al-Mahdi, “a known terrorist group.”
App.42a-43a. “Providing fungible resources to a
terrorist organization allows it to grow, recruit and
pay members, and obtain weapons.” App.43a. The
D.C. Circuit recognized the obvious when it held that
it was “reasonably foreseeable that financially fortifying Jaysh al-Mahdi would lead to the attacks” at issue.
Id. Respondents’ “nonconclusory, detailed allegations”
about petitioners’ payments to Jaysh al-Mahdi thus
supported causation. App.42a.
Reaching any other conclusion on causation would
disserve the ATA’s purposes. As this Court has held,
26
“[p]roximate-cause analysis is controlled by the
nature of the statutory cause of action.” Lexmark Int’l,
Inc. v. Static Control Components, Inc., 572 U.S. 118,
133 (2014). With the ATA, Congress aimed to “interrupt, or at least imperil, the flow of money” “at any
point along the causal chain of terrorism.” S. Rep. No.
102-342, at 22. If the statute is to fulfill Congress’s
objective of “cut[ting] the terrorists’ lifeline,” the
causation standard must encompass at least the
“financiers” bankrolling terrorism. Boim, 549 F.3d
at 691. That includes petitioners.
2. No circuit has rejected comparable causal allegations. Indeed, the D.C. Circuit considered the cases
from which petitioners concoct their split and distinguished them at length. App.44a, 47a.
First, no conflict exists over whether there must
be “ ‘some direct relationship between the injuries
suffered and the defendant’s acts.’ ” Pet.18 (quoting
Fields v. Twitter, Inc., 881 F.3d 739, 744 (9th Cir.
2018)) (cleaned up). Petitioners’ argument on this
point misreads the D.C. Circuit’s opinion. The court’s
lead holding was that petitioners “deal[t] with the
terrorist organization directly.” App.7a. Their direct
dealing with Jaysh al-Mahdi proximately caused
respondents’ deaths and injuries.
Petitioners’ cases are nothing like this one. In
Fields, the plaintiff failed to “articulate any connection” between the generally available social-media
platform and the terrorist attack, 881 F.3d at 750—
the same flaw present in Twitter. In Crosby v. Twitter,
Inc., the lone-wolf “individual perpetrator” was not
part of the terrorist group the defendant allegedly
aided. 921 F.3d 617, 626-27 & n.6 (6th Cir. 2019). In
Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013), the
plaintiff “simply assumed that aid to . . . Iran was aid
27
to the terrorists [it] supported.” App.47a. And in
Kemper v. Deutsche Bank AG, there were no allegations “plausibly suggesting that it was foreseeable
that [the defendant’s] actions would fund terrorism.”
911 F.3d 383, 394 (7th Cir. 2018); see App.44a (distinguishing Kemper).
The D.C. Circuit further distinguished Rothstein
and Kemper because there the defendants’ resources
never even reached the relevant terrorist group.
App.43a-44a; see Kemper, 911 F.3d at 394; Rothstein,
708 F.3d at 97. Here, by contrast, respondents spelled
out the connection with detailed allegations about how
petitioners’ “bribes and free goods” to Jaysh al-Mahdi
directly “supported its terrorist attacks.” App.46a47a. Petitioners cite no case dismissing causation
allegations when the defendants’ resources reached
the responsible terrorist group.
Second, the D.C. Circuit correctly rejected petitioners’ argument that the Ministry was a causationdefeating intermediary. The complaint, the court
noted, “extensively details Jaysh al-Mahdi’s control
over the Ministry.” App.44a. Given that control,
petitioners’ “bribes and free goods were aid to Jaysh
al-Mahdi” that “supported its terrorist acts.” App.46a47a. Put differently, petitioners’ “dealings with the
Ministry were equivalent to dealing with the terrorist
organization directly.” App.7a.
The Ministry “is markedly different from” Iran, the
intermediary in petitioners’ cases. App.44a. Iran
is “an autonomous nation with many functions and
priorities.” Id.; see Kemper, 911 F.3d at 393-94;
Rothstein, 708 F.3d at 97. And its status as “a U.S.designated sponsor of terrorism,” Pet.18, only shows
why causation was missing in Kemper and Rothstein:
Iran made its own independent choice to funnel
28
resources to terrorists with whom the defendants
never dealt. See Kemper, 911 F.3d at 393 (“[A] sovereign’s affirmative choice to engage in a wrongful
act will usually supersede a third party’s choice to
do business with that sovereign.”). For that reason,
“[t]he United States has regularly differentiated
between providing support to state sponsors of terror,”
such as Iran, “and providing support to terrorist
organizations” themselves. Id. at 394. Petitioners did
the latter. See App.44a. Such dealings would create
ATA liability in every circuit.
3. Petitioners’ factbound disagreement with the
D.C. Circuit’s decision does not warrant further
review. Other circuits, petitioners say, would not
hold them liable for merely “selling medical goods
that Jaysh al-Mahdi supporters in the Ministry
later diverted to the black market.” Pet.19. But
respondents allege more. As the court recognized,
respondents alleged that the Ministry “was thoroughly
dominated by Jaysh al-Mahdi and functioned more
as a terrorist apparatus than a health organization.”
App.44a (citation omitted). Petitioners’ renewed
request for this Court “to infer that Jaysh al-Mahdi
actually did not control the Ministry” reflects “an
untenably skeptical reading of the complaint.”
App.45a. Petitioners made all these same factual
arguments—based on the same out-of-context
complaint citations and the same dubious internet
research—to the D.C. Circuit. The court’s refusal to
credit petitioners’ flawed factual narrative created no
circuit split and does not warrant review.
B. The D.C. Circuit’s Aiding-Abetting Holding
Does Not Warrant Review
Secondary liability covers injuries from attacks
“committed, planned, or authorized by” a designated
29
terrorist organization. 18 U.S.C. § 2333(d)(2). The
D.C. Circuit held correctly that respondents “plausibly
allege that Hezbollah both planned and authorized
the attacks against them.” App.23a. That factbound
conclusion is sound, and petitioners’ attempt (at 22)
to rewrite the complaint to allege only “generalized
support and encouragement” lacks merit.
1. Hezbollah planned, authorized, and sometimes
jointly committed Jaysh al-Mahdi’s terrorist attacks.
The D.C. Circuit surveyed the “many . . . allegations
of close integration” between Hezbollah and Jaysh
al-Mahdi. App.26a. It held that Hezbollah’s “deep
and far reaching” role in each of “the attacks that
injured and killed” respondents created a plausible
inference of “planning” and “authorization.” App.25a;
C.A.App.250-74 (¶¶ 364-407).
First, Hezbollah planned the attacks that killed or
injured respondents. Hezbollah provided “weaponry,
training, and knowledge to Jaysh al-Mahdi with the
intent of harming Americans in Iraq.” App.25a. It
detailed in a “planning guide” how Jaysh al-Mahdi
fighters should deploy the training and weaponry. Id.;
C.A.App.267, 268-69 (¶¶ 399, 402). And it deployed
operatives to Iraq to impart those “planning” lessons
to the Jaysh al-Mahdi cells and fighters that attacked
respondents. C.A.App.263-64 (¶ 390). Each ensuing
attack against respondents reflected a tactical
and geographic connection to Hezbollah, raising a
plausible inference of Hezbollah’s direct involvement.
C.A.App.265-68, 269-73 (¶¶ 393-401, 403).
Penetrator attacks, which account for most of the
attacks against respondents, highlight the point.
Hezbollah instructed Jaysh al-Mahdi to use explosive
“penetrators” because of their unique ability to pierce
American armor. C.A.App.265-66 (¶¶ 395-396). This
30
weapon was “a signature Hezbollah tool,” App.10a,
that was “exclusively associated with Hezbollah,”
App.25a. Hezbollah not only provided penetrators to
Jaysh al-Mahdi, but also “identif[ied] specific target
locations in Iraq” for their use, including against
respondents. App.25a-26a. These allegations, the court
correctly held, “readily meet the minimum required to
plead that Hezbollah ‘planned’ the attacks.” App.26a.
Second, Hezbollah authorized the attacks that
killed or injured respondents. For example, Hezbollah
“issu[ed] a fatwa declaring a religious duty to attack
Americans in Iraq.” Id. That religious imprimatur
offered necessary authority for Jaysh al-Mahdi’s
acts of violence. C.A.App.259-60 (¶¶ 380-381). These
allegations “support the contention that Hezbollah
authorized the attacks,” App.26a, and so independently
support respondents’ claims.
Third, Hezbollah itself committed some attacks that
killed or injured respondents. As even petitioners
acknowledge, Pet.7, a joint Hezbollah–Jaysh al-Mahdi
cell committed 22 of the attacks at issue, injuring 35
respondents. App.20a-21a.
2. No circuit has rejected similar allegations. Petitioners’ cases involved lone-wolf shooters who received
no help at all from any designated group. Pet.20-21.
In Crosby, a “self-radicalized” shooter attacked a
Florida nightclub “by himself and without ISIS’s
help.” 921 F.3d at 626. Colon v. Twitter, Inc. involved
the same attack; the Eleventh Circuit merely “agree[d]
with the Sixth Circuit’s resolution of the same issue.”
14 F.4th 1213, 1222 (11th Cir. 2021). And Gonzalez
v. Google LLC involved a similar lone-wolf shooter
who also received no help from ISIS. 2 F.4th 871, 91112 (9th Cir. 2021), rev’d on other grounds sub nom.
Twitter, Inc. v. Taamneh, 143 S. Ct. 1206 (2023).
31
Each of those cases turned on whether designated
terrorists can plan or authorize a lone-wolf attack
solely by claiming “credit after-the-fact” while doing
nothing “beforehand.” Colon, 14 F.4th at 1222; accord
Gonzalez, 2 F.4th at 912; Crosby, 921 F.3d at 619. The
D.C. Circuit accurately described those cases as
“markedly different from” this one. App.23a.
3. Petitioners identify no legal error in the D.C. Circuit’s aiding-abetting analysis; they simply disagree
with the result. For example, petitioners offer an
extended interpretation of the statutory terms “plan”
and “authorize” but never identify where their interpretation departs from the D.C. Circuit’s. Petitioners
argue that to “ ‘plan’ means to ‘decide on and arrange
in advance.’ ” Pet.22 (citation omitted). The court
below said it means the same thing: “to arrange
the parts of ” or “to design.” App.21a (cleaned up).
Petitioners argue that to “ ‘authorize’ means to ‘give
official permission for.’ ” Pet.22 (citation omitted).
The court below agreed again, saying it means “to
endorse, empower, justify, or permit . . . through some
recognized or proper authority.” App.21a (cleaned
up). Even on petitioners’ view, the D.C. Circuit was
looking in the right places. This Court “rarely
grant[s]” certiorari to review the asserted “misapplication of a properly stated rule of law.” Sup. Ct. R. 10.
With no legal issue meriting review, petitioners
turn to the facts. The heart of their argument is that
Hezbollah provided only “generalized support and
encouragement” to Jaysh al-Mahdi. Pet.22. But the
complaint is far more detailed. As the D.C. Circuit
found, the allegations describe the “geographical
connections between Hezbollah’s presence and the
attacks at issue in this case,” “Hezbollah’s planning
role . . . in attacks using Penetrators,” and Hezbollah’s
32
“religious, personal, and operational authority over
Jaysh al-Mahdi.” App.25a-26a. Together, these allegations showed that “Hezbollah’s alleged involvement
in planning the attacks that injured and killed
[respondents] was deep and far reaching.” App.25a
(emphasis added). And as a result, respondents “plausibly plead[ed] that Hezbollah planned and authorized
Jaysh al-Mahdi’s challenged attacks.”
App.26a
(emphasis added). That factbound conclusion does
not merit review.
C. Petitioners’
Policy
Arguments
Are
Unpersuasive
The D.C. Circuit’s decision threatens none of
the foreign-policy consequences petitioners invent.
Pet.23-26. Congress provided “the broadest possible
basis” for secondary liability under the ATA, JASTA
§ 2(b), 130 Stat. 853, because “terrorism is a serious
and deadly problem that threatens” national security,
id. § 2(a)(1), 130 Stat. 852. The D.C. Circuit correctly
applied the statute. Petitioners’ speculation about
the consequences should be “addressed to Congress,
not the courts.” Sandoz Inc. v. Amgen Inc., 582 U.S.
1, 21 (2017).
Petitioners’ assertions also are unfounded. The D.C.
Circuit did not “overrule[ ]” any “ ‘strategic diplomatic
decision’ not to designate Jaysh al-Mahdi,” Pet.24
(quoting C.A.App.246 (¶ 355)); it accepted factual
allegations about Hezbollah’s role in Jaysh al-Mahdi’s
attacks. One of “the realities of modern terrorism”
is “that terrorist organizations, and Hezbollah in
particular, often operate by proxy.” App.22a. Congress
did not intend to exempt entities that aid those undesignated proxies from ATA liability. See Commanders C.A. Br. 17-24. The very complaint paragraph
petitioners quote explains that the non-designation
33
“was [not] intended to allow private companies to
deliver support to Jaysh al-Mahdi.” C.A.App.246
(¶ 355).
Petitioners’ humanitarian arguments are even
hollower. For “legitimate multinational businesses,”
Chamber Br. 18, or any other “companies and nonprofits” to answer the “call[ ] for aid,” Pet.25, they
need only refrain from knowingly funding terrorists.
Neither petitioners nor their amicus offer any evidence
that doing so is impossible—or even difficult. After
all, it already is a crime to provide material support to
undesignated terrorists. See 18 U.S.C. § 2339A.
Nor would petitioners’ rule even lessen the humanitarian crises they invent. They acknowledge Hezbollah’s alleged role in 22 of the attacks here. Pet.7.
But from the perspective of petitioners’ hypothetical
nonprofits, those 22 attacks are no different from
the others. All that differentiates them are tactical
details—whether Hezbollah fighters personally
performed the operational minutiae—about which no
legitimate nonprofit would ever know. Petitioners
cannot explain why the D.C. Circuit’s rule would deter
“companies and nonprofits” from working with undesignated terrorists any more than their own theory
would. Pet.25.
Petitioners’ final policy argument—that the D.C.
Circuit will become a magnet for ATA claims—is incorrect. In the 19 months since the D.C. Circuit issued
the opinion below, litigants have filed at least 17 ATA
cases of which respondents are aware. See Appendix.
Most of those cases are in New York district courts;
respondents know of only three in D.C. Id. And the
D.C. Circuit has shown that it is not uniquely hospitable to ATA claims, rejecting liability in every case
it has considered since the decision below. See Keren
34
Kayemeth LeIsrael – Jewish Nat’l Fund v. Education
for a Just Peace in the Middle E., 66 F.4th 1007, 1017
(D.C. Cir. 2023) (calling allegations “far less convincing” than those here); Bernhardt v. Islamic Republic
of Iran, 47 F.4th 856, 865 (D.C. Cir. 2022) (noting the
“stark contrast” with this case), cert. pet. pending, No.
23-18 (U.S. July 3, 2023). The rule in the D.C. Circuit
is the same as the rule everywhere: bribing terrorists
creates ATA liability, but non-culpable, passive behavior does not.
D. The Interlocutory Posture Of This Case
Confirms That Review Is Unwarranted
The petition’s interlocutory status furnishes
another reason to deny it. This case “comes to [this
Court] at the motion-to-dismiss stage, and the interlocutory posture is a factor counseling against this
Court’s review at this time.” NFL v. Ninth Inning,
Inc., 141 S. Ct. 56, 56-57 (2020) (Kavanaugh, J.,
respecting denial of certiorari); see Abbott v. Veasey,
137 S. Ct. 612, 613 (2017) (Roberts, C.J., respecting
denial of certiorari). Much remains to be done below:
the D.C. Circuit “remand[ed] the balance of the issues”
for the district court to consider in the first instance.
App.6a.
Petitioners’ issues may “become quite
unimportant by reason of the final result.” American
Constr. Co. v. Jacksonville, T. & K.W. Ry. Co., 148 U.S.
372, 384 (1893).
If the Questions Presented prove worthy of this
Court’s attention, there will be ample time to address
them “in a later petition following entry of a final
judgment.” Mount Soledad Mem’l Ass’n v. Trunk,
567 U.S. 944, 945-46 (2012) (Alito, J., respecting
denial of certiorari). But at this point, no discovery
has occurred. And petitioners’ repeated mischaracterizations of the complaint make clear that their defense
35
is really a factual one. Petitioners will have their
chance to prove that all they did was “answer[ ] th[e]
call” for private aid in Iraq. Pet.6. But for now, granting certiorari would just further delay respondents’
chance to finally prove their claims.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted,
August 23, 2023
DAVID C. FREDERICK
JOSHUA D. BRANSON
Counsel of Record
ANDREW E. GOLDSMITH
DEREK C. REINBOLD
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK,
P.L.L.C.
1615 M Street, N.W.
Suite 400
Washington, D.C. 20036
(202) 326-7900
(jbranson@kellogghansen.com)
APPENDIX
District of Columbia
1. Chand v. MTN Irancell Telecomms. Servs. Co.,
No. 22-0830, filed March 27, 2022.
2. Davis v. MTN Grp. Ltd., No. 22-0829, filed
March 27, 2022.
3. Schmitz v. Ericsson Inc., No. 22-2317, filed
August 5, 2022.
Southern District of Florida
1. Sotloff v. Qatar Charity, No. 22-80726, filed May
13, 2022.
Southern District of Indiana
1. Weinschenk v. United States, No. 22-1150, filed
June 6, 2022.
Eastern District of New York
1. Fields v. Lafarge S.A., No. 23-0169, filed January
10, 2023.
2. Finan v. Lafarge S.A., No. 22-7831, filed December 22, 2022.
3. Foley v. Lafarge S.A., No. 23-5691, filed July 27,
2023.
4. Lau v. ZTE Corp., No. 22-1855, filed April 3, 2022.
5. Long v. MTN Grp. Ltd., No. 23-5705, filed July
28, 2023.
Southern District of New York
1. Bonacasa v. Standard Chartered PLC, No. 22-3320,
filed April 22, 2022.
2. Bushnell v. Islamic Emirate of Afghanistan,
No. 22-8901, filed October 19, 2022.
3. Grazioso v. Islamic Emirate of Afghanistan,
No. 22-1188, filed February 11, 2022.
4. Hughes v. Zarrab, No. 23-6481, filed July 26, 2023.
2a
5. Moore v. Standard Chartered PLC, No. 23-2834,
filed April 4, 2023.
6. Owens v. Taliban, No. 22-1949, filed March 8,
2022.
7. Smedinghoff v. Standard Chartered Bank,
No. 23-2865, filed April 5, 2023.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.