Estate of Parsons v. Palestinian Authority

III PARSONS, OF Mark ESTATE argue plan also that the Defenders al., Appellants et Wyoming Fish and

unlawfully gives a veto over whether Department Game feeding They point will end. supplemental AUTHORITY, PALESTINIAN also plan stating in the language known as Palestinian Interim Self- reliance on agencies will seek to “decrease Government and Palestini- feeding, winter in- supplemental intensive Organization, an Liberation also complete transition to free-stand- cluding PLO, Appellees. known as forage and when several established

ing if No. 10-7085. met, including support criteria are from Department Wyoming Game and Fish Appeals, United States Court of public.” April Management and the District of Columbia Circuit. added). (emphasis Plan 137 Argued March 2011. might of how we have Regardless read instance, in the first language Aug. Decided 2011. Secretary has assured us his briefs and Aug. Reissued 2011. that the argument language oral confers En Rehearing Banc Denied (character Br. 34 Appellees’ no veto. See Sept. izing disputed provision “aspiration grant any al” than a power rather (also Wyoming’s Br. 28 n.

Wyoming);

agreeing Wyoming does not have a

veto); States, Wyoming v. United cf. (10th (“[Federal Cir.2002) F.3d

management regulation of federal refuges preempts manage

wildlife state

ment regulation refuges such management regulation

where state

stand as an accomplishment obstacle to the objectives

of the full purposes and Government.”).

Federal take the We Sec

retary at that Wyoming his word has no Secretary’s duty

veto over the to end a

practice concededly odds with long-term health of the elk and bison Refuge.

IV reasons,

For the foregoing the district

court’s judgment is

Affirmed. McAleer,

Charles F. and Timothy Jr. P. O’Tooleentered appearances. HENDERSON, TATEL, Before: BROWN, Judges. Circuit Opinion by for the court filed Circuit Judge TATEL.

Opinion concurring part and dissenting part by filed Circuit Judge HENDERSON.

Concurring opinion by filed Circuit Judge TATEL.

Opinion concurring part and dissenting in part by filed Circuit Judge BROWN.

TATEL, Judge: Circuit providing security While for a U.S. State Department convoy in the Strip, Gaza Mark Parsons was killed a roadside bomb. Parsons’s estate and his sued the Palestinian Authority under the Anti-Terrorism Act of alleging that Authority provided had sup- port conspired for and with the terrorist or terrorists who detonated bomb. Con- cluding that had pro- duced genu- insufficient evidence to create disputes ine of material fact on these Anti- claims, Terrorism Act the district court granted summary judgment to the Pales- tinian Authority. Although agree we family’s conspir- district court that the acy claim theories speculative are too survive judgment, we believe a juror reasonable could conclude that Pales- tinian employees provided mate- rial support to the bomber. Accordingly, argued Edward MacAllister the cause respect we affirm with appellants. him With on the briefs claim but reverse as support. to material Heideman, Tracy were Richard D. Reich- Kalik, man and Steven R. Perles. I.

Laura Ferguson argued G. the cause for appellees. Intifada, her on With the brief were In the midst Second 15, 2003, Mark J. Rochon and Matthew T. Reinhard. October Depart- United States convoy through the ter the “explosion targeting traveled the U.S. con- ment of State way voy place took I called Joma’a Abou interview Pales- Strip on Gaza Loze[, hole,] helped dig who had Scholarship applicants. Fulbright tinian place him not to officials, asked move about Department Besides State plant and not to the device because of the Authority a Palestinian convoy included dangers involved.” in position Police car the lead and Civil employees International under DynCorp Qarmout having pos- also admitted to Department pro- contract with the State sessed three bombs one month prior to the security. convoy the vide While traveled bombing. He the described bombs as us- Road, approximately 20 along Salahadeen cables, ing detonating employing urea as city about one-fourth of a meters —or material, explosive weighing and 30 to a manned Palestinian Author- block—from kilograms, kilograms, 20 to 25 and 10 to ity security checkpoint, roadside bomb kilograms. Qarmout, According to killing DynCorp employee Mark exploded, kilogram was the 12 bomb he had Parsons and two of his co-workers. plant intended Salahadeen Road.

Immediately bombing, after the Pales- In the course of their investigations, the Authority security police tinian and forces Authority Palestinian and the FBI con- site, gathered took control forensic analyses ducted forensic of the bomb that evidence, investigation determined, and launched an killed Parsons. Both among by Authority’s run the Palestinian Preven- things, other that the bomb contained urea Security tive Services. United and Authority’s analysis States nitrate. The added Israeli authorities also weighed approximately launched their own the bomb investigations. kilograms to 40 using was detonated Moreover, cables. a memo found in the During investigation, its the Palestinian Authority’s investigative Palestinian file Authority interrogated detained and six concludes, device, based on lid of “[t]he whom, suspects, “a number of’ according detonator, type used, the cables having to the official overall responsibility poorly batteries, type connected of ex- for investigation, possess- “admitted to material, plosive casing [and] outer ing planting explosive charges in the device[,] that the structure of this past, targeted at military Israeli incursions device is the same structure used into Gaza.” suspects One those was Popular Resistance Committees.” Qarmout, Amer a leader Popular day, To this neither the Palestinian Au- (“PRC”). Resistance During Committees thority nor Israel nor the United States interrogation, Qarmout how, his recounted publicly has identified the bomber. The days two or prior bombing, three to the he reason, according to the Palestinian Au- supervised digging of a hole on Salaha- thority, all investigations is that three re- planned deen Street in which place he open main “identity and the of the individ- Qarmout bomb. and “fellow members in group responsible uals or planning dug Resistance” the hole “in front of carrying bombing out the has never been Authority] the [Palestinian National Secu- Appellees’ determined.” Br. 2. The Par- rity Qarmout explained: Service.” “I in- family disputes sons whether the Palestini- myself troduced Security the National has identify indeed failed to soldiers and asked them to turn their at- responsible those for the attack. young tention from the men who were planting the device.” But denying Nearly he ever years four after the bombing, bomb, planted estate, claimed that af- siblings, par- Parsons’s his and his in personal interpreta- filed this lawsuit the U.S. titled “Conclusion and exits’ estate District of happened according District Court for the Columbia tion of what Authority and the the Palestinian against my possession,” information the memo alleg- Organization, Liberation Palestinian includes several statements about the role organization that each was at least ing Authority employees played Palestinian for the attack. Al- partially responsible bombing including: family’s complaint raised sever- though the (cid:127) explosive planted “The device was claims, just appeal al at issue are away meters from the National Securi- two, brought under the Anti-Terror- both ty checkpoint, a fact that indicates that against ism Act of 1991 those present front of the check- (but Authority not the Palestinian Libera- point day previous that have knowl- Organization) allegedly providing tion edge presence of the of the device.” conspiring to and support material (cid:127) “[Ajfter information of the arrival of the terrorist or terrorists who set leaked, embassy staff was either In support detonated the bomb. of these by Security the National personnel at claims, family the Parsons advanced sever- checkpoint the or those who were linking al theories for the Palestinian Au- accompanying convoy, the person the attack, thority three of which responsible for explosion detonat- to that appeal: are relevant this Palestini- ed the device.” Security nearby an National forces at the The memo also includes several observa- agreed way to look the other checkpoint bomb, supra tions about the see as planted; while the bomb was that Authori- well as two statements about when the ty tipped off the bomber about personnel prepared device was and buried: convoy; provid- and that weapons to the bomber. ed (cid:127) examining used, “After the material we prepared learned had been more

Among family the evidence the Parsons theories, twenty days than earlier and that a prove offered to these three doc- portion Au- substantial of the uments —discovered the Palestinian nitric acid lost, thority’s investigative par- separated file and that the had been from the urea, and the district court have thus far ties with the iron in reacted treated as central to admissible—are this casing.” outer above) (quoted case. The first document (cid:127) above, “As we mentioned the device statement to Palestinian Au- present was for 20 days least....” thority interrogators Qarmout in which ad- addition, family In the Parsons claimed that prepared plant mits he a bomb on they prove could that Amer in approximately Salahadeen Road the Popular Resistance Committees and/or same location as the bomb that killed Par- Moreover, directly carried out the attack. statement, Qarmout In sons. also family they that even if insisted were possessed the three bombs he describes bomber, identify they unable to the actual prior the month attack. sec- prevail long they could nonetheless so (also piece ond of evidence referenced show what role the Au- could above) report. is the FBI’s forensic Last- thority had played. ly, family two-page relied on a memo court, focusing The district on the three having an unidentified author addressed to evidence, granted the “Director items of the Palestinian General Preventive Service,” Authority’s Security significance judgment. of which motion for In parties forcefully plaintiffs debate. a section The court first held that advanc- Here, material claims under ing United States. identify Act must “what

Anti-Terrorism alleges the Palestinian Authori- or individual carried organization terrorist ty violated two federal criminal statutes: out the attack.” Estate Parsons v. Pal 2339A, § 18 U.S.C. which makes it a crime Auth., F.Supp.2d estinian “provide[ ] material or re- (D.D.C.2010). Concluding that no reason knowing sources intending or find, juror family’s able could based on the they for, in preparation are to be used evidence, Qarmout, admissible out, carrying specific violation of’ PRC, any specific other terrorist or crimes, § violent including 18 U.S.C. organization directly respon terrorist was prohibits killing which aof United bomb, rejected sible for the the court States; States national outside the United claim. Although 2332(b), and 18 U.S.C. which makes it a agreeing prove that the need not crime conspire to kill a United States identity the bombers’ for their national outside the United States. The rejected the court nonetheless family’s Anti-Terrorism Act claims thus well, reasoning claim as that the admissi turn on whether prove can the ele- linking ble evidence the Palestinian Au (the ments of either section 2339A material thority to the attack was too speculative. claim) 2332(b) (the support or section con- family appeals. The Parsons now Our re claim). spiracy opinion, In this we consid- Bernanke, view is de novo. See Jones er the material support claim and an- (explain judgment nounce our with respect to the ing that we review judgment conspiracy claim. novo). decisions de Support Material II. The disputes first the dis The family brought their mate- trict interpretation court’s of section 2339A rial support claims under requiring as identify them to the actual liability provision the civil of the Anti- bomber. family may The prevail, they gives Terrorism Act of which United long so as show that the Pales injured “by States nationals killed or rea- tinian Authority provided material support son of an act of international terrorism” directly whoever carried out the attack. (or estates, heirs) survivors, their point, On this the Palestinian Authority right bring a civil lawsuit in federal directly challenges never family’s stat § court. 18 U.S.C. 2333. The Act defines utory analysis, good and for reason. As that, “international terrorism” as activities observes, correctly “[t]he em among things other not relevant to this phasis § in 18 U.S.C. 2339A upon is appeal, “involve violent acts or acts dan- support provider material pro —‘whoever gerous to human life that are a violation of vides material or resources’—not the criminal laws of the United States or recipient.” Appellants’ Br. 18. State, any or that would abe criminal said, if family’s theory violation That jurisdic- committed within the that Amer tion of any planted the United States or of State.” and detonated the bomb 2331(1)(A). words, Id. In other and that pre- employees vail, plaintiff a prove gave end, must him the defen- material to that dant would, would have any proven, violated one of a if at least be sufficient to predicate series of criminal laws had the sustain their material claim. Ac- defendant jurisdiction acted within the cordingly, we first consider a whether rea- conclude, juror starting killing could so that around the time of the sonable he possessed weighed question of whether the bomb 30 to 35 with the kilograms, employed explosive, urea as the Qarmout planted and deto- evidence and used cable detonators. The bomb de- is sufficient to survive nated bomb by scribed the FBI and the Palestinian summary judgment. Authority’s analyses largely matches that Evaluating whether evidence offered at profile. Both describe a bomb employing summary judgment is to send a sufficient material, explosive urea nitrate as the jury as much art as case to the is science. Authority analysis reports that Under Federal Rule of Civil Procedure weighed kilograms bomb 30 to 40 and used grant summary judgment the court must Moreover, cable detonators. the memo in “if shows that there no the movant is Authority’s the Palestinian investigative any fact genuine dispute as to file concludes that “the structure of this judgment the movant is entitled to device the same structure used 56(a). matter of law.” Fed.R.Civ.P. But Popular Resistance Committees”'—-the “genuine” what makes for a factual dis- very organization same terrorist of which pute? Supreme Court answered that Qarmout was a leader. question Liberty Lobby, Anderson v. The district court took note of most of Inc., explaining that the “mere existence of evidence, acknowledging that “[e]vi- a scintilla of evidence ... will be insuffi- prepared dence that someone to do some- summary judgment. cient” to defeat [i.e., thing Qarmout prepared plant 242, 252, S.Ct. L.Ed.2d ques- bomb] is of course relevant to the (1986). Applying that standard re- it,” person actually tion of whether the did quires us to examine both the “caliber” Parsons, F.Supp.2d Estate at of “quantity” family’s the of the and evidence that the linking memo’s conclusion the “through prism the of the substantive evi- Popular bomb to the Resistance Commit- claims, dentiary burden” —for these the essentially tees “is of a factual nature and the preponderance of evidence standard. relevance, does have some as it tends to said, Id. at 106 S.Ct. 2505. That pattern PRC,” practice by show the Liberty Lobby against also warns “deni- id., that and is also evidence that “[t]here jury.” gratfing] the role of the Id. at member, Qarmout may is PRC so it be end, Supreme 106 S.Ct. 2505. To that the sensible to consider the evidence related to emphasized, “Credibility Court determina- Qarmout the together,” and PRC id. at 33 tions, evidence, the of weighing and so, n. 4. Even the district court found this drawing legitimate inferences from Qarmout’s evidence insufficient. admis- functions, jury the facts are not those of a enough light sions were not “in of his judge.... The evidence of the non-movant actually orchestrating denial the bomb- believed, justifiable to all be infer- Moreover, ing.” Id. at 32. is at “[t]here ences are to be drawn his favor.” Id. least some indication that the bomb had family’s We that believe present days been prior for 20 to the ex- evidence is sufficient to meet this burden plosion contrary Qarmout’s to account” respect Qarmout planted with to whether that preparing plant he was to a bomb Qarmout and detonated the bomb. him- only days prior two or three to the attack. days prior self admitted that two or three Id. at 32 n. 2. As for the Au- attack, memo, to prepared plant thority he to a bomb because “is undated and approximate in the of the anonymous, weight location bomb its is minimal.” Id. at Qarmout any event, that killed Parsons. also said 32. And “the bare fact that pared earlier,” resembles bombs of twenty days used PRC more than bomb weight Qarm- little that past meaning adds so its later statement —“as we above, evidence present out that remains mentioned the device was evidence identity days insufficient to establish for 20 least”—could be read as n. 4. cross-referencing bomber.” Id. at 33 that earlier state- contradictions, Sorting ment. out these analy- Supplementing the district court’s deciding weight how much give to evidence sis, Authority argues that the Palestinian supports undermines the light Qarmout’s history targeting case, evaluating credibility how much “[tjhere military the Israeli is no evidence assign Qarmout’s incriminating versus Qarmout targeted would have a U.S. exculpatory prototypical statements are diplomatic convoy.” Appellees’ Br. At 37. jury may functions that courts not com- Authority argument, pointed oral also mandeer. Liberty Lobby, 477 Qarmout’s statement that he intended S.Ct. We therefore conclude bomb, kilogram plant his not the 30 that the Parsons has demonstrated kilogram Recording to 35 one. of Oral genuine the existence of a dispute of mate- Arg. 17:54-18:57. Qarmout rial fact as to whether was the Although evidentiary these criticisms bomber. force, are, certainly given have next disputes on both evi- teachings Liberty Lobby, properly more dentiary legal grounds whether jury. view, In directed to the our a rea- family can show that the Palestinian Au- juror Qarmout could sonable conclude that thority provided Qarmout with material bomb; planted never the actual support. As for evidentiary objection, its ground bomb had in the twenty been Authority questions any assertion that days, long before began digging Security the National personnel at hole; Qarmout planted his a different checkpoint complied re- bomb; planted or even he the bomb quest to “turn their away attention” from target Israelis but never it. detonated planting of a points bomb. It out not however, A juror, reasonable could also only Qarmout’s statement makes no Qarmout’s believe incriminating state- mention of whether and how the guards ones, ments but disbelieve his exculpatory responded, Qarmout but also that de- and thus conclude that he lied about call- only scribes a conversation while he was ing Likewise, off bombing. a reason- hole, digging a not during the more serious juror able Qarmout could find that planned activity planting Moreover, a bomb. plant and did the 30 to kilogram relying Qarmout’s on another in passage bomb that possession, had been in his in statement which he per- describes how opposed to the 12 kilogram bomb referred sonnel at a different National Security to in his statement. hardly And would checkpoint Qarmout’s pre- thwarted one of be juror unreasonable for a to conclude missions, bomb-planting vious the Authori- that the in reference the Palestinian Au- ty argues that personnel at this check- thority memo to the having bomb been in point would have stopped from ground twenty days for was a mis- planting Appellees’ a bomb. Br. 38. in statement and fact the memo’s only author meant to write that the bomb again, evidentiary Once such arguments prepared, had been necessarily but not properly are jury, addressed not to planted, twenty days all, earlier. After the court. Recall that at judg- says memo first pre- bomb “had been non-moving party ment the is entitled to (1993)). nary Although in favor. the Court “justifiable inferences” its all 106 S.Ct. Liberty Lobby, 477 U.S. defined that term in the context of a differ- Here, just juror could here, a reasonable than one deal with ent statute we Qarmout’s from statement ifiably infer generally presume, we absent some indica- only was checkpoint fact that the from the contrary, Congress tion to the intends bomb site that in re from the 20 meters meanings identical terms to have identical Qarmout’s request, the Palestini sponse to no provisions, related such indica- Security forces stationed there either Lundy, tion exists here. See Comm’r implicitly through their ac expressly, 235, 249-50, 516 U.S. 116 S.Ct. tions, “turn atten agreed to and did their (1996). Moreover, defining L.Ed.2d 611 Qarmout’s planting bomb activi tion” from differently “service” sections 2339A and ties. particularly inappropriate 2339B seems accuses the of given provision expressly the latter failing “parse language the mate support borrows its definition of “material any legal statute” or to “cite support rial resources,” “service,” including from the authority” establishing complying § 2339B(g)(4). former. See 18 U.S.C. In- Qarmout’s request to look the other deed, discussing when “service” Hu- bomb, constituted way planted while he Project, manitarian Law the Court cites meaning support material within 2339B, not to section but also to Appellees’ Br. 43. The section 2339A. section 2339A’smaterial definition. family responds security that the forces’ Project, Humanitarian Law 130 S.Ct. at categories two listed in conduct falls under 2339A(b)(l)). § (citing 2721-22 18 U.S.C. 2339A(b)(l)’s “material section definition of Assuming, stage as we must namely, “service” support or resources”— 2339A(b)(l). litigation, checkpoint person- that the “personnel.” 18 U.S.C. claims, nel acted as the Parsons we begin Although with “service.” We security think the forces’ conduct falls term, nowhere defines that section 2339A comfortably within Humanitarian Law Supreme provided Court a definition Project’s definition of “service.” As secu- just year in Holder v. Humanitarian last rity assigned personnel checkpoint, to a — U.S.-, Project, 130 S.Ct. Law they presumably responsible pre- were (2010), involving 177 L.Ed.2d 355 a case from and deto- venting planting terrorists statute, material closely related Moreover, nearby. nating bombs al- 2339B, “knowingly that outlaws section legedly response acted or resources providing] effect, then, In at a request. terrorist’s organization.” a terrorist foreign behest, security agreed these officers 2339B(a)(l). There, § the Court U.S.C. affirmatively and did remove the threat explained that “service” “refers to concert- that local law enforcement officers would (as “independent activity” opposed ed themselves interfere with the terrorist’s activity”) “ordinary and carries its mean- “ function- plant efforts to bomb—actions com- ing” i.e., performance ‘the of work — ally distracting beat-cop the same as so for another: a serv- paid manded or safely that someone else can break the law duty: superior’; ant’s attendance on a or that is police without intrusion. Because or at the ‘an act done for the benefit ” surely an act in concert with and for done command of another.’ Humanitarian terrorist, of a it constitutes the benefit Project, (quoting Law at 2721-22 S.Ct. a “service” and therefore materi- providing Third New International Dictio- Webster’s note, however, meaning of claim. al within the section We that because the panel issue, on the 2339A. is divided have we binding reached no decision about whether conclusion, we need not ad Given this family the Parsons has shown a genuine of question trickier whether the dress the fact dispute of material as to the scienter conduct also security alleged forces’ consti element of material support their claim. say providing “personnel.” tutes We § See 18 U.S.C. 2339A (criminalizing the are at least trickier because we unsure provision of or “material resources qualifies providing whether that conduct as ... knowing intending that or are “personnel” 2339B as section defines that for, preparation be used in in carrying or although term and because some courts out, crimes, specific a violation of’ violent “personnel” have has a concluded dif including which prohibits U.S.C. meaning ferent and broader in section the killing of a United States national out- 2339A, of at least one those courts has also added)). (emphasis side the United States acknowledged existence of strong ar Compare Opinion Judge of Henderson contrary. guments to the See United (“Henderson Op.”) 127-32 (concluding that Abu-Jihaad, F.Supp.2d States the Parsons has satisfy failed to (D.Conn.2009) 399^100 (concluding that element), scienter with Opinion Judge provide one can for “personnel” pur- (“Brown Brown Op.”) (concluding 139-43 poses long so section 2339A as there is that the Parsons has demonstrated coordination, action, joint some form of a genuine dispute material fact as to the understanding person- shared between the element), Opinion scienter provider nel and the terrorist but acknowl- (“Tatel Op.”) Tatel (treating 137-39 for- as edging arguments applying section any feited argument that the Parsons fam- definition, 2339B’s narrower which ex- ily satisfy has failed to the scienter ele- pressly requires working, or providing oth- ment). work, ers to under terrorist’s “direction control”); see also United States v. Conspiracy Abdi, F.Supp.2d 1057-58 (S.D.Ohio 2007). affirm We, We the district however, grant court’s shall leave as judgment family’s to the resolution of con- issue for another day. spiracy claim. Op. See Henderson at 127 sum, In we conclude that a reasonable 1, 132; n. Tatel at 132-38. But see juror could find on the basis of Brown at 143-50. evidence that planted the bomb that killed and that III. Security nearby forces at security checkpoint complied Finally, re- family argues in the quest not to interfere with his effort to alternative discovery, for additional a re- plant a bomb. Because such qualify quest acts court Although district denied. providing under we sec- find no abuse of discretion in that 2339A, tion we reverse the district court’s decision with respect family’s con- grant of summary judgment to the spiracy Quander, Pales- Dunning see v. tinian Authority family’s curiam), on the material 508 F.3d (per support Having claim. reached may this con- the district well court view the need clusion, we have no need to discovery consider the for additional on the material evidentiary other support differently theories claim in light of this with respect support opinion. to their material therefore leave We this issue for, carrying out, in in in preparation to consider the first or a the district court violation of’ criminal instance remand. certain statutes. 18 added). 2339A(a) § (emphasis U.S.C. One So ordered. § criminal pro statute —18 U.S.C. 2332— HENDERSON, killing hibits the of a national U.S. outside KAREN LeCRAFT in the United Section 2339A makes concurring part and States. Judge, Circuit support material providing clear or dissenting part: in resources is not sufficient to alone consti (ATA Act) The Act or Anti-Terrorism tute violation. The criminal defendant (or national his authorizes a United States provide support must or re heirs) estate, injured “by survivors or rea- intending” or “knowing sources son of an international terrorism” to act of preparation resources to be used in “are money damages. in for sue federal court for, out,” in carrying or the underlying 2333(a). Act “in- § The defines U.S.C. here, killing of a U.S. national crime' — that, as ternational terrorism” activities outside United States. 18 U.S.C. here, violent relevant “involve acts or acts 2339A(a); § see also United States v. dangerous to human life are a viola- Stewart, (2d Cir.2009) tion of laws of the criminal the United (“Section penalize 2339A does not State, or that any States or of would be a provision support of material without re- if criminal violation committed within the gard to support what the is for. [It] re- jurisdiction any of the United States or of quires provide instead the defendant 2331(1)(A). § pre- State.” To 18 U.S.C. or support resources with the knowledge (Parsons vail, therefore, the fami- plaintiffs or intent that such resources be used to ly) that defendant must show specific commit violent crimes.” (emphasis (PA), had it acted within the (“Section original)); in id. at 113 n. 18 jurisdiction any of the United States or of provision 2339A criminalizes the of materi- State, would have violated criminal law support knowing intending al that such of the United or of the States State. On is support used to aid crimes of terrorism. appeal, alleges two Therefore, in the mental state section (1) PA provided such violations: mate- itself, support 2339A extends both to the killing rial for the of a nation- to the underlying purposes which (2) § al in violation of 18 U.S.C. 2339A and given.” (emphasis is origi- the PA kill a conspired to U.S. national nal) (internal omitted)). citation 2332(b). For violation I of 18 U.S.C. 2339A, then, criminal violation of section affirm the district court on alternative specific required. intent is See Humani ground that the Parsons has failed Mukasey, Law Project tarian F.3d requirement to establish the scienter (9th Cir.2009) (section 2332(b). 2339A re Accordingly, sections 2339A and quires specific to act with in defendant part.1 I respectfully dissent tent), part rev’d in part & on other affd exception majority I take opin- no ground sub nom. Holder v. Humanitarian ion’s explanation underlying facts. Project, - U.S. -, Law 130 S.Ct. My disagreement legal, not factual. (2010). 177 L.Ed.2d 355 provision criminalizes the Section 2339A knowledge required “material or resources ... know- violate sec- ing intending are be used tion 2339A in the context of the ATA’s join affirming thority family’s conspiracy judgment on the Parsons judgment grant defendant claim. Palestinian Au-

128 Israel, 18 in liability provision, sojourners many U.S.C. and civil U.S. 2883(a), subject has been debate. in live Israel ... citizens and that dona- banc, Circuit, held sitting Seventh en Hamas, The by augmenting tions to Hamas’s criminal recklessness Boim resources, would kill enable Hamas to or suffices. Found, Dev., Holy for & v. Land Relief kill, wound, try or to kill conspire Cir.2008) (en banc). 685, (7th 693 F.Sd in people more Israel. in Boim were accused The defendants “of words, In Id. at 693-94. other the court having provided support to Ha- financial knowingly money donating concluded ”mas, organization which killed David a criminally is suffi- Hamas reckless act Boim, a living U.S. national Israel. Id. 2333(a), cient to violate sections 2339A and The court criminal compared at 687-88. dissenting 2332. Three judges found the “ permits ‘generally recklessness—which reasoning “awfully vague” court’s and ac- finding person recklessness when of court cused the of statu- “sliding] over the disregards a risk which harm he is of of tory requirement entity pro- ”—to aware’ civil recklessness—which viding material assistance must know that gross merely negli- “sometimes connotes plans the donee to commit terrorist acts gence requires only and at other times (Wood, against citizens.” Id. at 725 have acted in the defendant face J., dissenting); see also v. Abecassis an unreasonable he risk that should of Wyatt, F.Supp.2d 623, 664-65 been aware have even he wasn’t”— of if (S.D.Tex.2010) (“[I]t is enough not [that criminal, civil, and concluded that not reck- provider of material or resources] required lessness is to violate sections know the character of the [recipi- ultimate 2332, incorporated 2389A into sec- ent of the resources]. 2333(a). tion Id. at (quoting Farmer (or intend) defendant must know that its Brennan, 837, 511 U.S. S.Ct. money going to a group is engaged (1991)); 128 L.Ed.2d 811 id. at 693 acts or is being terrorist used to (“[I]t impose would not be enough to liabil terrorist acts. Because liability civil under ity on a donor violating section victims, the ATA is restricted to American there even were no re if state-of-mind (or intend) the defendant must also know quirements in sections 2339A that the terrorism or group terrorist average person that the or a reasonable targets supporting Americans.”); Unit- cf. person organization would realize that the Stewart, ed States v. 113 & n. supporting he organi was was a terrorist (2d Cir.2009). zation, the actual did not real if defendant it.”). By ize no way opinion example, express court the Seventh “giv[ing] application noted that a small child a Circuit’s loaded criminal reckless- gun would be a case criminal reckless ness to establish civil liability under the ness” because giver “the know ATA he for a violation of section be- 2339A doing something extremely dangerous was cause Parsons family failed to establish (em justification.” and without at 693 Id. even criminal recklessness. Significantly, phasis original). Similarly, the court the Boim court’s determination that explained, recklessly donors acted relied on “State is, knowing Department donor data that in

[a] to Hamas —that were there 184,000 donor who knew the about American living aims activities citizens the organization Israel, accounting know that for about 3.1 percent —would ..., Hamas was gunning country’s for Israelis population.” 549 F.3d at that Americans are frequent visitors to 694. The record here contains no data basis) evidentiary akin more [ ] presence statement’s American similar suggesting fact-find- than to reasonable speculation that to Instead, indicates the record Gaza. “ jury possibility that ing” ‘[t]he and Americans, likely the Israelis, were not plaintiffs in the favor ... might speculate See targets [Re- of the bomb. intended to defeat simply’ ¶ is insufficient (“[A] the number of Decl. dacted] Judge of Concurring Opinion judgment.”4 interrogated” and arrested individuals (Tatel (quoting Athridge at 134 Op.) Tatel explosion “admitted PA after the Co., F.3d Cas. & Sur. v. Aetna charges planting explosive and possessing (D.C.Cir.2010)). military Israeli targeted at past, in the added)).2 (emphasis into incursions Gaza.” the two- Judge Brown contends shortly after That Israeli tanks arrived govern- is an “official page memorandum the area reinforces explosion to secure pre- to a ment record” that is “entitled ¶ only 10. The evi- See id. inference. Judge sumption regularity.” Opinion alleged provision the PA’s (Brown that links dence Op.) (citing PNC Brown killing of a U.S. support to the Comm’r, of material Inc. v. 503 F.3d Grp., Fin. Servs. personal and (D.C.Cir.2007)). is the “[conclusion national government author of anonymous interpretation” of official tax receipt record in PNC was an two-page memorandum an undated government marking Brazilian of the Preventive Secu- PNC, of the “Director General specific of a tax. payment personnel PA rity Service” of memo- portion at 123. The relevant —either in the lead checkpoint or those randum, contrast, those at the purport not does “information convoy specific car occurrence of a memorialize the —“leaked” Embassy staff’ to per- the arrival of U.S. and to offer a “[conclusion event but the bomb.3 Sealed App. detonated 305. interpretation.” whoever sonal Sealed accept the conclusion and un- unsigned 305. To App. Because the document reasonably rep- the bomber of assume it personnel PA notified dated we cannot convoy require position. “would PA’s official We can of the U.S. resents the arrival (about what it reliability represents inference assume piling author) represent purports “[c]onclusion of the statement’s knowledgability —the (about interpretation” of its au- personal statement when the upon inference added). written) (about (emphasis thor.5 Id. upon inference was personnel suggest that PA ment does not Gaza” at [Redacted] 2. was [Redacted] ¶ target would explosion. Deck 7. have known the bomb [Redacted] time of the Id. into the event. [Redacted] In that role he Americans. ¶ 8. speculative claim I 4. find urges by a Judge that a statement

3. Brown personnel at the for another reason. For PA secu- head of the PSS that Palestinian former so, checkpoint even more in the con- —and martyred them- rity aided Hamas and forces "tipped” voy have the bomber to —to during the Second Intifada “tends selves per- embassy means that those staff's arrival personnel that PA conclusion” [the] pinpoint calibrated with sonnel had to have disregarded security checkpoint at least explosion affect accuracy would not would aid in the the risk that their conduct otherwise, own lives risked their them — Judge Opinion killing Americans. well. The PSS official’s state- Brown at 142-43. English an translation found on ment is disagree [Re- Brown that the Watch, 5. Media Israe- website of Palestinian supports inferences fa- institute, Declaration dacted] clip excerpted news of an li research family regarding the to the Parsons vorable Assuming arguendo the website from statement, knowledgability reliability of the memo- accurately the state- translated the 130 admittedly precedent personal

The other Brown relies attach —to the inter- regularity of applied presumption the pretation anonymous of an investigator in governmental of American offi the actions the irregular one of most chaotic and re- foreign Musengo cials—not officials. See gions world. (D.C.Cir.2002) White, v. F.3d 535 286 The memorandum does not explain, (Army officers); Emps. Am. Fed’n Gov’t moreover, why it concludes that per- PA (D.C.Cir.1989) F.2d Reagan, v. 723 sonnel “leaked” news of the convoy’s U.S. (President States); of the United S. Pac. arrival. The portion relevant the mem- T, 980, v. AT & F.2d Commc’ns Co. orandum states full: (D.C.Cir.1984) denied, (judge), 994-95 cert. 1359, 105 S.Ct. 470 U.S. 84 L.Ed.2d above, As we mentioned the device was McClellan, (1985); McSurely least, present for 20 at days which (D.C.Cir.1982) (same), F.2d 323-24 that planted means the device was either denied, 474 U.S. cert. 106 S.Ct. problem after the Ismail Hameed (1985); 88 L.Ed.2d 457 Jones v. United planted was or it for one of the vehicles States, of the Israeli occupation army. Howev- (en banc) cases, jury). (grand These er, after information the arrival of moreover, applied the presumption to es- Embassy leaked, U.S. was staff either tablish that ap- the officials followed the by the Security personnel National propriate procedures when performing checkpoint by the or those who were duties, see, their official e.g., Am. Fed’n of convoy, accompanying person re- 727-28, Emps., Gov’t 870 F.2d at not to sponsible for the explosion detonated the “conclusions, lend credence to their infer- device. ences, subjective judgments,” see The Id. memorandum Brown contains no factual Op. presume, at 141. That courts its basis for conclusion that contrary, absent clear evidence to “National duly Se- personnel” curity elected appointed or American leaked news about governmen- tal correctly convoy. officials act compliance and in To conclude that the memo- with applicable law suggest does not that a randum’s author “inferred” the conclusion similar presumption attaches —or should proximity “from bomb’s to the eheck- randum's See author. Brown 140-41. of each record. It means he verified portion The relevant of the [Redacted] Decla- provided records to counsel for the ration states: reproductions PA and PLO were accurate by held records the PSS'—without necessarily kept investigative The PSS an file docu- endorsing any or statements conclusions in interviews, menting investigation, inter- above-quoted those records. pas- After the rogations provided and the analysis forensic moreover, sage, the Declaration discusses—in Copies pro- FBI. of those files were paragraphs begin several that all "I have re- vided to counsel for the PA and PLO in this matter, investigative viewed file .... "(cid:127) —the evi- copies and I understand were then Qarmout’s statement, dence contained in provided to Plaintiffs’ I counsel. was re- sponsible copy” "true correct of which is collecting, assembling, for attached ¶¶ producing to the Declaration investigative produced as exhibit 1. See id. file 19- this matter 22. In contrast to verifying and for the extensive discussion rec- Qarmout's statement, produced ords are copies authentic of rec- the Declaration does kept ords investigation in the course of not mention the memorandum. Nor is the bombing. into the memorandum attached as exhibit to the Qarmout's ¶¶ Declaration, [Redacted] Deck 17-18. [Redacted] state- as statement is. Ac- ment responsible cordingly, that he was verifying nothing find in the [Redacted]

that the copies” records were supports "authentic does Declaration reliability not mean that he also verified the substance authoritativeness of the memorandum. on, they Brown there is no evidence that did so simply speculate. point” intending are to be ‘knowing at the personnel inference that at 142. carrying out killing used’ in of U.S. about because knew the bomb checkpoint act, required national or other terrorist if checkpoint, even proximity of its ....”); § 2339A id. at 37 by 18 U.S.C. reasonable, says the further nothing about (“There Qarmout no that is evidence checkpoint at personnel inference targeted diplomatic would have a U.S. convoy’s arrival. news of U.S. leaked (“Plaintiffs convoy.”); id. at 43 ... do not The two inferences are unrelated. The adequately guard how a failure explain to proximi- supported is facts—the former security checkpoint prevent a and to the checkpoint the bomb ty of —while explosive charge of an meets the planting latter is not. of ‘material under the support’ definition family offers no Because the Parsons 2339A(b) (which § statute. See 18 U.S.C. to evidence demonstrate admissible an affirmative requires act of en- (or or reck- PA intended knew even knowledge in with the gaged requisite whether) lessly disregarded its conduct— intent, rather than an act of omission assuming arguendo provided added)). (emphasis negligence).” Nor planted resources to whoever support or family to the for us is it “unfair Parsons in aid and detonated bomb—would to consider whether the creates evidence national, a the PA is entitled killing of U.S. of a genuine dispute a material fact as to” fam- summary judgment to necessary element of claims. their See ily’s section 2339Aclaim. Op. at 138. The PA raised the lack Tatel section Judge Tatel would avoid meeting of section admissible evidence requirement by maintain- scienter 2339A’s requirement in 2339A’s scienter both its “identiffy] PA section that the did not ing in court in for brief its motion requirement of mind as a state 2339A’s in court. judgment district See specific theory” accepted for the problem 33-34, 41-43; 37, Br. Appellees’ Mem. of per- majority “namely, that by the in Auths. of Defs.’ Mot. Support — Points & checkpoint agreed at the posted sonnel 14, at J. Estate Parsons v. Summ. of request not to interfere with Auth., F.Supp.2d 27 715 Op. Tatel plant his efforts to bomb.” (No. 07-cv-01847). (D.D.C.2010) Op. original); in Brown (emphasis 138 see ample oppor thus Parsons has had contrary, repeated- To the the PA at 143. tunity respond argument. to the PA’s that the failed to ly argues Justice, Dep’t v. U.S. 584 See Skinner require- satisfy (“no section 2339A’s scienter 1093, 1101 un F.3d (The Par- Appellees’ Br. 33-34 ment. See affirming in on alternative fairness” family “offered facts that could sons no where issue was raised before dis ground respond), in that the admissible form presented be full opportunity trict court with — any denied, kind material provided -, PA rt. 131 U.S. ce PRC, provid- let alone the PA 72, (2010); 178 L.Ed.2d 240 Washb S.Ct. (D.C.Cir. support ‘knowing intending’ Lavoie, ed such 437 89 urn v. F.3d for, preparation 2006); it was ‘to be used in Newspa see also Wash.-Baltimore out,’ Guild, Post, carrying killing of a U.S. or in Local 35 959 per v. Wash. (D.C.Cir.1992) (“We national, requires.” (empha- the statute n. 3 F.2d 292 original) uphold grant 18 U.S.C. of sum (quoting in have discretion sis (“Even 2339A)); theory if dif mary judgment legal at 41-42 some- under a id. given weap- applied by from that the district PA had ferent one (D.C.Cir.1996)), court, any- the affirmance on resting cert. de — record, ground that finds nied, -, U.S. S.Ct. particularly one raised before the district (2008); also In re L.Ed.2d see Terror original)). Judge Ta- court.” (emphasis Bombings ist Embassies E. unrealistically parses tel the PA’s defense (2d (to Cir.2008) Africa, 552 F.3d seemingly ar- into unrelated discrete existence of criminal establish 137-38; guments.6 Tatel See cf. 2332(b), under section evidence “must “[SJummary at 139-40 n. 1. Brown prove conspirators agreed on the if judgment appropriate nonmoving underlying illegal objec essence party a showing fails to make sufficient to tive[s], and the kind criminal conduct of an es- establish the existence element ... in fact contemplated.” (ellipsis and al- case, sential to that and on which party’s teration original; quotation internal party proof that will bear the burden of — omitted)), denied, marks cert U.S. Shah, at trial.” v. F.3d Talavera 638 , — - -, 129 S.Ct. L.Ed.2d 2778 (internal quotation 308 — (2009), U.S.-, 130 S.Ct. omitted). family marks The Parsons (2010). 2332(b) L.Ed.2d 928 thus Section showing failed to to make a sufficient es- requires knowingly that a conspire violator tablish an element of their essential a explained to kill U.S. national. As earli PA, provided claim—that assuming the er, family the Parsons has failed to show support, knowledge acted with or possessed that the PA requisite knowl support intent that its would the kill- aid or edge intent to conspiracy ing of a national. The U.S. district court claim. properly granted therefore summary

judgment PA. reasons, For the I foregoing would af- The PA is summary likewise entitled to firm toto grant the district court’s of judgment on the Parsons section summary and, judgment in favor of the PA 2332(b) 2332(b) claim. conspiracy Section accordingly, dissent from the reversal of kill, makes it a to “attempt! crime to ] summary judgment on the 18 U.S.C. engage! conspiracy kill, in a to a national ] § claim. 2339A of the United States” outside the United 2332(b). States. prove 18 U.S.C. “To TATEL, Judge, Circuit concurring: conspiracy charge, must [evidence] I separately explain my write to reasons show that agreed engage the defendant to joining our affirmance of the district activity partici- criminal and ‘knowingly grant court’s of judgment to the pated conspiracy’ in the with the intent to ” Authority Palestinian to commit as the offense.... States v. Parsons United (D.C.Cir.) Hemphill, family’s conspiracy 514 F.3d I explain claim. also (quoting United States Gatling, why v. I would decide neither the scienter Qarmout 6. compartmentalized ap- Even under his "deals whether committed this moreover, proach, attack, Judge Tatel that concedes not with the of per- state mind of the the PA raised section 2339A's scienter re- at checkpoint.” sonnel Tatel at 138. quirement If, however, family's as a personnel defense checkpoint at the "Qarmout theory.” Tatel He did not believe—because there was no evi- Qarmout nonetheless contends the PA's claim that dence the belief—that “[tjhere Qarmout target convoy, any they is no evidence that would a U.S. Qarmout targeted diplomatic convoy,” Ap- have may provided a U.S. have would not have pellees’ (or immediately given Br. 37—which claim knowing intending fol- been reckless- explanation whether) lows the ly disregarding PA’s was it would be used targets— military known to Israeli attack kill a U.S. national. (D.D.C.2010). debate, Given that docu- compare Opin- my colleagues issue (“Henderson supposedly cap- ment summarizes Henderson Judge ion of Authority document tured Palestinian Brown Opinion Op.”), with nor (“Brown quotes neither that document attaches Op.”), nor vicarious 139-43 it, reaches, I copy see no abuse discretion Judge Brown liability issue the district court’s decision. See Gen. 147-52. Op. at see Brown Joiner, 136, 143,

Elec. 522 U.S. Co. (1997) (explain- I. S.Ct. L.Ed.2d 508 summary judg- motion for ing “[o]n appear disagree Although parties admissibility question ment of an Anti-Ter- about elements the exact expert testimony ... is reviewable under rorism Act civil standard”). Ac- abuse-of-discretion I, agree, do cordingly, disregard shall the docu- too of an prove must at least existence ment. agreement between planted the bomb. employees and whoever relies on a video snippet also Compare Bombings In re Terrorist of purportedly of a 2007 with Mu- interview 114 Africa, E. F.3d Embassies in Dahlan, of the Palestinian hammad head (2d Cir.2008) (listing among section Security Preventive from Services 2332(b)’s that a requirements defendant until 2002 Minister and Palestinian of conspira- [the essence of “agree[ to the ] September until Security April State from added)), with cy’s] objectives” (emphasis (according in which Dahlan said to a Hemphill, F.3d United States v. translation on the Palestinian Media (D.C.Cir.2008) (“To prove conspira- website): “Forty percent of Watch the must cy charge, the show [evidence] in Martyrs belonged Intifada the this engage in criminal agreed the defendant security Palestinian forces. The Palestini- ” added)). activity (emphasis .... security protect- an forces were those who evidentiary in family two theories offers hid Hamas [military] ed and half of the that a argument of its reasonable military leadership and of the Hamas force juror agreement. an could find such during the Intifada.” Palestinian Media Watch, theories, addressing http://www.palwatch.org/main. those how- Before ever, aspx?fi=713&flcLid=713&doc_id=864 I the briefly family’s argu- consider (last 2011). July visited The Palestini- ment should take account of two that we Authority this video as “unau- describes pieces of evidence the district court disre- thenticated,” the video First, suggesting court ruled in- garded. the district Appellees’ at trial. would be inadmissible from the website admissible a document summary judgment, Br. But Intelligence Ter- to defeat archive the Israeli of party “capa- need evidence purporting produce Center rorism Information being of into admissible evi- Palestinian Au- ble converted “captured” summarize a Paulson, dence,” Greer thority allegedly describing v. document (internal quotation factory nitric acid to 1315 plans create a omitted), the marks and the defect Author- According to production. bomb court, ity hardly irremediable. this is inad- identifies seems the district document Authority Accordingly, and because the of- “[i]ntelligenee reports missible because inadmissibility argument other hearsay fers no multiple levels are contain court, the I shall consider Dahlan not Estate Par- admissible evidence.” Auth., F.Supp.2d video. sons then, turn, principal two point they would have requisite had the arguments preserving (2) for their leak; opportunity to equally the rely exclusively both of which almost speculative suggestion that because the anonymous two-page the undated and on head former of the Palestinian Security discovered in the Palestinian Au- memo bragged forces that some among many the thority’s investigative Pointing to a file. thousands Palestinian Security forces memo, single sentence the participated Intifada, the Second those says they personnel prove can first particular forces at this particular check- checkpoint or Palestinian of- the point have as must well. As for the sen- convoy’s tipped ficials lead car off memo, tence from the extremely it too is of convoy’s terrorist about move- poor “caliber.” Id. In particular, the sen- That in- “[A]fter ments. sentence states: specific tence refers to no facts which embassy formation of the arrival of U.S. the memo’s author based his conclusion. leaked, by staff was either National contrast, By the sentence about bomb Security personnel checkpoint or by resembling those used in past those who were accompanying convoy, Popular Resistance Committees rests on person responsible explosion device, “[t]he lid type of detona- detonated the device.” Because this sen- tor, used, the cable the poorly connected fact,” “is stated as a as an tence not infer- batteries, the type explosive material, guess, family argues ence or a that it casing the outer [and] of the device.” must be Appellants’ Reply believed. Br. 6 Moreover, the show can (citing Inc., Liberty Lobby, Anderson v. neither who wrote this memo nor at what 242, 255, 477 U.S. 106 S.Ct. 91 stage in the investigation it was written. (1986), proposition L.Ed.2d for the their Accepting tipster therefore, theory, that “the evidence of the non-movant is to (about require piling inference the believed”). Moreover, be family the con- reliability and knowledgability of the state- tends that as the non-moving party they author) (about upon ment’s inference when are entitled to a supportive series of infer- written) the statement was upon inference ences: that the memo was written (about basis)— the statement’s evidentiary qualified and high-ranking Palestinian Au- akin to speculation more thority than to reason- investigator, that prepared it was fact-finding. at the able investigation, conclusion of And possibility “[t]he the that it was jury might based on that a damning speculate facts uncov- plain- the during ered that investigation. tiffs favor is simply” insufficient to defeat judgment. Athridge v. Notwithstanding family’s the valiant ef- Co., Aetna &Cas. Sur. 604 F.Sd fort build an entire out of case this (inter- (ellipsis in original) sentence, single I think it too slender a omitted). quotation nal marks Nor does to support reed the the weight conspira- the considering memo in light of claim. Dahlan’s cy Applying Lobby, I Liberty focus change statement analysis, this for that on both the “quantity” “caliber” of statement is cast at family’s such a high level of evidence. 477 at generality that it makes single family’s S.Ct. Other than theo- sentence memo, ry about happened from the what only particular this potentially even only admissible evidence on instance family infinitesimally likely. which the more (1) relies is entirely But speculative sugges- see Brown Accordingly, 147-48. that tion because Palestinian family’s tipster of- theory cannot save ficials were in convoy at the check- conspiracy their claim. during in some attacks family participated a second the- forces offers

The Parsons claim, conspiracy personnel their the Second Intifada that ory security checkpoint namely, complicit in this attack. checkpoint were plant- terrorist he helped the while forces theory just dependent second as This however, the Significantly, ed the bomb. incredibly incredibly qual- little and low family never defends their just ity speculative— evidence—and so respect do with by arguing, as claim family Not would the as the first. to their jury quite to make two substantial ask help with the Qarmout planted bomb security inferences —that the forces knew In- checkpoint. at the of those stationed they affirmatively of the bomb and stead, only the more advances but, helped plant as the Palestinian it— evidentiary theory that someone generic out, they Authority points would do so planted the bomb with some at sometime based on evidence that leaves a number of security kind of assistance from those unanswered, important questions such as prin- In relies support, forces. checkpoint “whether the was manned 24- checkpoint the fact that the was cipally on day” hours a and “whether the bomb could site, which only meters from the bomb night.” Ap- planted have been unseen personnel posted them means that pellees’ Br. 44. Such a tower of inferences have known about the bomb. there must atop gap-filled built foundation is too Seeking to demonstrate the reasonable- inference, family points agree to unstable to stand. thus with the of that ness which, in the memo em- generic another sentence district court that the the- states, reasoning, “The ploying ory help personnel posted identical at the about explosive planted device was meters checkpoint provided planting must have away Security from the National check- inadequate the bomb is also to defeat sum- pres- that those point, a fact indicates mary judgment. day checkpoint of the ent front family has Given that the Parsons failed knowledge presence previous have conspiracy any their claim with defend apparently recogniz- But of the device.” evidentiary theory just other than the two knowing about a bomb or

ing simply that rejected, ordinarily my analy- I would end stop being a from failing even bomb already But sis here. because we have co-conspira- not make one a planted does explained family’s in the context of the attack, family in a terrorist the tor support material claim that a reasonable security that jury have a further infer juror find that “at a terrorist’s be- could affirmatively helped place the forces Authority personnel hest” the Palestinian bomb, a perhaps by complying with re- posted checkpoint “agreed at the to and way. Defending quest to look the other affirmatively remove the threat that did leap, family inferential re- that second local law enforcement officers would them- statements, only but lies on terrorist’s selves interfere with the efforts anyone “that that proposition the limited bomb,” Maj. at plant (empha- the bomb on Street planted [Salahadeen] (as added), might sis one wonder does cooperation ... must have obtained the Brown, Op. 143- see Brown Authority] security check- the [Palestinian 48) family have failed to addition, how the could In Appellants’ Br. 33. point.” genuine dispute of material fact as ju- show family again suggests once in the agreement to the existence of justifiably could infer from Dahlan’s ror Security conspiracy context of their claim. some Palestinian boast Although there is some tension between only support evidence ... gener- “the analyses, responsibility these two for that ic evidentiary theory that someone at belongs family tension to the Parsons sometime planted the with bomb some court, family alone. In the district kind of security assistance from th[e] conspiracy their claim first and defended forces,” 135; supra family never theory on the that the Palestinian foremost suggests that this evidence describes the Authority “through security person- their specific conspiracy that is the basis for a known conspired nel member of the liability. family’s Given the approach, it is [i.e., Qarmout] to commit PRC the terror- hardly surprising Authority that the never planting ist act of bomb” that [the] killed once mentions the evidence in Mem. in Opp’n Parsons. Parsons’ to responding to family’s conspiracy claim 1, 2010, Def.’s Mot. for Summ. J. Mar. arguments even to incorporate argu- —not court, however, ECF No. 31. The district ments respect made earlier with family’s found the evidence insufficient to support material claim. Appellees’ Br. 45- theory, sustain that but only held that Indeed, expressly states claims, conspiracy not understanding its the evidence on claims, require identifying who carried out family which the relies to the con- Apparently prompted by attack. spiracy claim “consists of only the two- decision, the decided to page added). memo.” Id. at (emphasis pursue Qarmout theory their appeal course, appellees Of sometimes appel- miss only as an alternative argument in case we arguments, lants’ but when do we can agreed with the district proving court that usually appellants count on point identity statutorily bomber’s re- out their reply something the brief — quired thus for their material —and So, Parsons family never does. far from Having claim. made such a misconstruing brief—and far choice, must accept its conse- evidence, from “ignorfing]” any Brown Op. quences. by See Doe Fein v. District of —my at 143 approach to the family’s con- Columbia, (D.C.Cir. 875 n. 14 spiracy simply claim by abides the basic 1996) curiam) (per (finding forfeited an “premise of system our adversarial argument by relied on the district court that appellate courts do not sit as self- but not appeal). raised on directed boards of legal inquiry and re- According Brown, however, to Judge search, but essentially as legal arbiters of family “properly [put Qarmout’s state- questions presented and argued ment] before the court as to parties before them.” Regan, Carducci v. just not the material support claim.” 171, 177(D.C.Cir.1983). 714 F.2d Brown Op. at 145. I disagree. The con- Judge spiracy Brown insists section of the forfei- “[o]ur brief men- ture doctrine Qarmout applies tions the only legal arguments, evidence in a single sentence, not facts.” Op. while Brown at devoting three full 143. Not pages true. to the There is two-page categorical memo in no such discovered distinction Authority’s investigative Brown has not file. identified even a Appellant’s contrast, single Br. By 33-36. saying case otherwise. forfeiture family spends pages Op. six Brown the material at 144. To contrary, our Qarmout section on the 7(h) district Popu- courts’ Local Civil Rule ex- lar Resistance Committee pressly evidence. Id. at authorizes courts to treat as for- 22-24, Moreover, 26-29. in feited including record evi- evidence— section, refers to the parties dence—that the highlight fail to at purposes that one of the (explaining Local Civ. R. judgment. D.D.C. summary 7(h)’s (“[T]he facts 7(h)(1) may predecessor assume that Rule was to court Local Civil in its state- moving party parts ... to the opponent identified “direct[ ] admitted, unless facts are of material “oppo- ment at issue so that the record” in the state- controverted a fact is such opportunity respond”). nent ... has the opposition filed in genuine issues ment ill- for fairness would be This concern motion,” “shall in- which statement to the if regularly appeals served we decided parts record clude references only passingly on record evidence based statement.”). The relied on to footnote, mentioned in a or identified for dispute of material genuine existence of reply time in a brief or at oral first therefore, fact, ordinarily turns not on argument. But see Brown record, but rather on of the entire review that). (implying just we do portions and the of the record the “facts” where, implicated Fairness is as well specifically highlights. See party each here, nonmoving party develops Henderson, Fara- Finnegan, Jackson theory in adequate evidentiary defense of bow, Dunner, 145, 154 & 101 F.3d Garrett one not another claim—at least where but (D.C.Cir.1996) (rejecting argument claims have elements. the two different properly not decide that “the court could all, an for attack- argument After useless considering summary judgment without theory in ing a the context of one claim exis- record to determine the the entire in may devastating theory be to that same issues of material fact” genuine tence of the context of the other claim. It is hard- omitted)). (internal Like- quotation marks surprising then that in v. Pow- ly Vickers wise, evi- routinely refuse to consider we ell, exactly we did what I do here —name- appeal on for the first time on dence relied ly, reviewing a district court’s if that was the record even evidence decision, judgment expressly we declined See, e.g., court. Potter before the district relevant record evidence with Columbia, to consider 558 F.3d 549- v. District of (D.C.Cir.2009) respect to one of the nonmovant’s claims (applying to record evi- the nonmovant had relied on that principle forfeiture because dence the “well settled” claim. legal only theories not asserted evidence to defend different “that issues ordinarily level will (declining at the District Court (internal appeal” quotation not be heard to consider evidence of “various discrimi- omitted)). marks natory employer’s alleg- rebut an acts” to edly non-discriminatory explanation for to unarticulated evi- apply We forfeiture non- firing nonmovant in the context of dentiary “judges theories not because claim while eval- movant’s retaliation even pigs, hunting for truffles bur- are not like in the context of non- uating evidence record,” or the id. at 553 ied briefs claim movant’s hostile work environment (internal (Williams, J., quota- concurring) only advanced that ev- because nonmovant omitted); marks accord Brown tions claim). of the latter idence 144^15, such a rule but also because parties. deny To ensures fairness to both motion on an summary judgment based II. evidentiary theory nonmoving party the My debate whether “the Par- colleagues necessarily deprive developed

never would failed to establish the sons has party opportunity to moving the of’ their two claims. requirement v. scienter theory. in that See Gardels poke holes (D.C.Cir.1980) Compare (genu- at 127. id. Op. Henderson 637 F.2d 773-74 CIA of material fact dispute personnel ine not shown for the posted at the check- element), with Op. scienter Brown at point agreed Qarmout’s to request not to (disagreeing). I 139-43 have no need to interfere with plant his efforts to a bomb. respect reach this issue with to the Par- Because these point references to eviden- because, family’s conspiracy sons claim for tiary Qarmout other than theories the- above, the different reasons discussed I ory or to Qarmout elements of the theory grant would affirm the of summary judg- element, other than the state they of mind ment to that claim. I would also decline hardly are adequate put family’s address issue as to the family on notice of specific element of claim material because its brief specific evidentiary theory Judge this court the Palestinian nev- now Henderson addresses. Under these er section identifies 2339A’s state of mind circumstances, then, it would be unfair to requirement problem as a specific for the for us to consider theory we now accept, namely, that the whether the evidence a genuine creates personnel posted checkpoint at the agreed dispute of material fact as to security request not to interfere with forces’ state of mind allegedly when aiding plant his efforts to a bomb. See United Qarmout. Reeves, (D.C.Cir. States 586 F.3d Moreover, even if the Authority had 2009) (arguments not appeal made on are properly issue, raised the scienter I would forfeited). ordinarily exercise our discretion not to reach it. According Henderson, to Judge the Au- The district court never decided this issue thority did raise argument indeed, this — appeal and on parties it, address at “repeatedly.” Henderson at 131. But best, in worst, passing, all, and at not two of “repeated[]” these ap- references supra see my 123-24. As colleagues’ pear in sections of Authority’s brief demonstrates, debate well the issue is both devoted to evidentiary other than theories complex. novel and Under these circum Qarmout theory. See Appellees’ Br. stances, think “prudent it most to re (PRC (the theory); 33-34 id. at 43 so- mand to the issue[ ] district court called proximity theory). Judge Nor are for an Union, initial evaluation.” Int’l Henderson’s two citations to the Authori- Auto., United Aerospace Agric. Imple & ty’s Qarmout-based any section more on Brock, ment Workers Am. v. “[tjhere point. The is no evidence first — (noting that federal Qarmout targeted have a U.S. appellate courts have discretion to remand diplomatic convoy,” Appellee’s Br. 37— “purely legal” issues unaddressed with deals whether committed district court and inadequately briefed on attack, not with the state of mind of appeal). the personnel at the checkpoint. The sec- if Brown “[e]ven someone in also addresses the Author- [Palestinian ond— Authority] ity’s given Qarmout had contention may weapon, not be held is no vicariously there evidence that liable they did under the so Anti-Terror- ‘knowing intending ism Act the acts checkpoint are to be its employ- used’ in carrying allegedly out the ees killing Qarmout. of a took to aid Brown act,” national other terrorist at 147-52. Appellees’ Again, I have no need to Br. 41^2 (quoting reach 18 U.S.C. this issue as to the conspira- § 2339A(a)) clearly cy refers claim. supra See at 119-25. forAs — theory that the Authority provided Qarm- although the Au- out weapons, rather theory thority than the raised its vicarious liability theory summary judgment court’s affirmance of argument, that claim at oral against family’s I oversight conspiracy in its brief—an on the claim under never did so 2332(b). reasons, Recording § of Oral For three each of not overlook. 15:08-15:25, 16:43-17:55; conclusion, necessary my see also to I at which Arg. NLRB, summary judgment on that Vegas Corp. Rest. 334 would reverse Ark Las First, (argu- respectfully disagree I 108 n. 4 claim too. F.3d Judge time at oral raised for the first with Henderson’s conclusion ments forfeited). family’s I Accordingly, are evidence is insuffi- argument liability PA prove “knowingly” provid- address the vicarious cient to decline to to, with, conspired ed material issue. the terrorist who killed Mark Parsons. Second, respectfully disagree Judge I with III. forfeited, family Tatel that the Parsons as agree Judge I with Brown about agree to its facts we have holding”: virtue of our “narrow “we family properly alleged asserted about making Brown at least avoided bad law.” Amer in the material bomber Op. thoughtful legal analy- at 150. As the context; and that the evidence is reveal, my colleagues the Anti-Ter- ses of Finally, prove conspiracy. insufficient to liability provision Act’s civil raises rorism in concluding the district court erred ques- and still unresolved many difficult Authority may Palestinian not be held vi- showing tions. scienter does the Act What cariously liable under the Anti-Terrorism scope is the of vicarious require? What agents. Act for the acts of its liability? requirement ap- Does the intent every element of the Act? That the ply to I outright forfeiting in parties, addition barely, poor- or at best arguments, several Judge Henderson would affirm the dis- confirms ly, questions address these other grant summary judgment trict court’s my judgment path to cut a narrow Authority favor of the Palestinian deciding appeal. claims, Par- both because she thinks the sons has not satisfied the relevant BROWN, Judge, concurring in Circuit requirements liability for civil un- scienter part dissenting part: 2339A(a) 2332(b). §§ der 18 U.S.C. (cid:127) Tatel, Judge disagree Judge I court’s Like I with reversing concur the district Henderson, summary judgment disagree in favor of the but we for different grant (“PA”) forfeiture, Judge on the Par- Tatel relies on reasons. 137-38, claim Tatel I reach the sons under and would 2339A. I dissent from the merits.1 The Parsons satisfies the U.S.C. Judge compartmen- argument every theory— is the for 1. Consistent with Tatel's PA's same evidence, approach namely, guards did talized which I that the not know below, 143-47, killing pp. materially supporting were of an. address see he deals infra to, argument by opposed say, an Israeli. Henderson’s scienter American as party finding Authority "never iden- think it is sufficient for a to raise a the Palestinian require- statutory once for whole 2339A’s state of mind scienter defense tifies section theory applies. necessary problem specific we claim to which it It is not ment as a for the statutory argument accept, namely, personnel post- rehearse the same that the now theory liability. argu- checkpoint agreed specific each Precise ed at the judicial process, request certainly not to interfere with his efforts to ments benefit judges, Henderson plant Tatel But the but we are not robots. a bomb.” Cf. (1994) requirements (Stevens, J., as to both 130 L.Ed.2d relevant scienter con- (same support curring) claim and their con- their material for elements different section). spiracy single claim. subsections of a statutory words, In other prevail on its material support family must A demonstrate Authority provides The Anti-Terrorism Act a civil or its material support “kn[ew] intend[ed]” remedy injured by nationals just any killing, assist not but killing act of international terrorism. 18 U.S.C. Thus, aof U.S. national. the first inter- 2333(a). § “[International terrorism” is pretive challenge is by agreement resolved defined to mean extraterritorial or trans- parties. of the national activities “involve violent acts But requirement the scienter for materi- dangerous or acts to human life that are a al entails another interpretive violation of the criminal laws of the United problem: Section 2339A is a criminal stat- any or ... appear States State [and] ute, predicate but it is a liability for civil be intended” to achieve the coercive ends 2333(a). 2331(1). § under In the context § of civil terrorism. Id. The Parsons liability, judge § we a violation of family 2339A alleges the Palestinian differently than we if this were a predicate committed the criminal offense criminal matter. For example, the Par- “provid[ing] material or re- family prove sons need not beyond ... its case knowing sources or intending that doubt, a reasonable but they for, only by prepon- preparation are to be used in Likewise, derance of the evidence. carrying out a violation of section ... civil 2332,” 2339A(a), requirements intent apply, § not their id. which in turn sanc- criminal counterparts. tions kills a national of “[w]hoever States, United while such national is out- through Viewed liability, the lens of civil 2332(a). States,” § side the United id. the “knowing intending” requirement § Because the Parsons conceded as 2339A is satisfied criminal reckless- much, 9:50-10:06, Arg. ness, see Oral I assume a deliberate indifference to the at- 2339A(a) requirement § intent ap- here, tendant the risk that the mate- risk — plies 2332(a), each element of even rial support would be used to kill an Found, though the latter section contains no intent American. Holy See Boim v. Land requirement of Dev., its own. Flores-Fi- & 693-94 Cf. for Relief gueroa States, (7th Cir.2008) (en banc). United 556 U.S. 1886, 1888-89, S.Ct. 173 L.Ed.2d 853 Henderson cites the dissent in Boim to (2009) (holding requirement the scienter in suggest disagreement there is about the phrase “knowingly transfers with- requirement. scienter Henderson out lawful authority, a means of identifica- 128. But even the dissenters in Boim tion of person” another applies to all ele- agree with the criminal recklessness stan- clause, ments of the including “of theory. (Wood, another dard in J., See id. at 721 person”); United States v. concurring part X-Citement dissenting part). Video, Inc., 64, 79, 513 U.S. They S.Ct. disagree application over the of this ("Judge victim, unrealistically parses nationality Tatel Arg. Oral 9:50- seemingly PA’s 10:06, defense into discrete and argue they so cannot were unfair- Moreover, arguments.”). unrelated the Par- ly prejudiced by the form of the Palestinian sons liability conceded that under the Authority's arguments. requires statute scienter as to

141 facts, this is where I hand examination of evidence. and standard [Redacted], Through the PA later con- The Henderson. disagree “investigative firmed it had disclosed an stronger family’s case is even documenting investigation, file” its which majority a of ease in Boim where than the analysis of “involved the forensic a mere Circuit concluded the Seventh gathered evidence at the scene of the monetary donation to Hamas satisfied (“S.A.”) bombing.” Appendix Sealed Here, by recklessness standard. criminal pro- PA that the records “verif[ied] contrast, Na- family alleges copies kept duced are authentic of records materially Security personnel sup- tional investigation in the course of the into the specific of a bomb and ported planting bombing.” Id. specific a American its detonation under convoy. government An official record such as to a presumption regular- this is entitled of about the risk to Deliberate indifference ity, only upon showing rebuttable a of reasonably inferred may Americans be specific “clear or evidence.” PNC Fin. pieces main of the interaction of four from Comm’r, 119, v. Group Servs. 503 F.3d 123 Qarmout’s statement he so- evidence: (D.C.Cir.2007) (quoting Riggs Corp. Nat’l Security of National cooperation licited the Comm’r, (D.C.Cir.2002) 16, v. 295 F.3d 21 checkpoint may where he personnel at (affording presumption regularity may actually planted not have foreign early a tax receipt)). Since “the bomb, of the bomb to that proximity days Republic,” presumption of the presence of a Palestinian checkpoint, regularity applied variety “has been a Authority car at the head of the American Emps. contexts.” Am. Fed’n Gov’t v. investigative convoy, and the PA’s own 723, 727 Reagan, 870 F.2d & n. 33 Security National report, which concludes (D.C.Cir.1989) cases). It (collecting gov- off the bomber about the personnel tipped erns not records that “memorialize convoy. to- approaching American Viewed event,” specific the occurrence of a for a gether, this evidence is sufficient 129, posits Henderson at but also juror to conclude the Palestini- reasonable government proper proce- officials follow Authority’s agents least knew conclusions, inferences, in the and dures targeted that Americans would be risk subjective judgments they reach that risk. disregarded See, of their official regular course duties. points Judge Henderson out White, 535, 286 F.3d e.g., Musengo 538 jury unsigned report requires PA (D.C.Cir.2002) (an Officer Evaluation Re- “reliability and something infer about the [Army] port used “to evaluate an officer’s author,” of the statement’s knowledgability performance potential”); and career S. Henderson but I think the Co., Am. Pac. Commc’ns Co. v. Tel. & Tel. form, report (a and substance of the origin, (D.C.Cir.1984) judge’s 740 F.2d reasonably an inference. See support such adoption findings and conclusions from Shah, McClellan, Talavera v. 638 F.3d filing); McSurely v. party’s (D.C.Cir.2011) (“[T]he (D.C.Cir.1982) (a all court must draw warrant F.2d the non- inferences favor of pursuant judge’s indepen- reasonable to “the issued moving party.”). The Palestinian Authori- opinion probable dent that there is cause search”); discovery. ty produced report itself for an arrest or a Jones v. Unit- States, It addressed to the Director General of ed (“the jury”). Security findings grand Preventive Service of a Of

the PA’s course, (“PSS”), presumption require would not purports to be based on first- accept the author’s inference that rival jury Embassy of U.S. staff’ Security personnel knew National about bomber. A jury reasonably Id. could in- tipped off the bomber. But the bomb fer that this conclusion too was based on that, specific it does mean absent “clear or proximity the bomb’s to the checkpoint— evidence,” report presumed the should be a detail report’s that the conclusion men- copy” to be an “authentic of “materials tions twice. Id. That evidentiary the ba- PA prepared the Preventive only [one sis for this conclusion is implicit Security] investigating the report [S]ervices does not the presumption void bombing,” implied as the PA it was. regularity. S.A. of See Am. Fed’n Gov’t 259. Emps., 870 F.2d at 727. are in We position say no report’s inferences assumes, Judge Henderson in favor of unreasonable, are coming do party, moving report’s that the author from the PA’s own ranks after an inves- rogue investigator was a who un- reached tigation only PA could have despite founded conclusions unparalleled Presumably conducted. security guards access to the evidence. See Henderson responsible being are aware of their Talavera, atOp. 129-31. Contra surroundings, Maj. Op. see (“The at 308 evidence tois be viewed in there is something suspicious about the light most favorable to nonmoving timing of an attack that up blows added)). party.” (emphasis There is no vehicles but misses the PA’s lead car. basis for this assumption. Although the Former Palestinian Security Minister Palestinian Authority is in the posi- best Muhammad Dahlan’s statement on Al- so, evidence, tion to do it has offered no Arabiya TV that security evidence, much specific” less “clear or forces aided martyred Hamas and them- report’s unqualified author was during selves the Second Intifada tends did, reach the conclusions he or that he to support that conclusion. See infra an evidentiary lacked basis for those con- pp. 147-48.3 clusions.2 report’s author inferred from the This may evidence not be overwhelm- proximity bomb’s checkpoint ing, but at judgment stage Security personnel National previ- “ha[d] it need be sufficient. A jury could ous knowledge presence of the reasonably persuaded be by the same evi- device.” S.A. 305. Based on “the infor- dence that convinced the Palestinian Au- mation in possession,” report’s thority’s [his] own investigator who —someone author also concluded that the check- presumably had access to the scene of point personnel or the other National bombing knowledge of the envi- Security personnel accompanying the correct, ronment. If the report convoy “leaked” “information of ar- checkpoint personnel acted with more Judge translation, Henderson notes the just Dec- English [Redacted] contains not but explicitly laration does not itself, clip discuss the PA the video of Dahlan’s statement report as it does complete statement. with Arabic audio. See Palestinian Op. Watch, Henderson at 129-30 n. 5. But [Redacted] Security Media PA Forces Aided Ha- single report failure to out PMW, from the rest of During Intifada, http://www. mas investigative hardly PA’s file is evidence palwatch.org/main.aspx?fi=713&fld_id= 713&doc_id=864 that it is unreliable. (last 22, 2011). July visited Presumably the video and its translation 3. Contrary Judge implication, Henderson’s could be authenticated at trial. See Tatel Henderson at 129 n. the record at 133. cf. indifference; they know- and asked the than deliberate bomb there National Securi- ty personnel at the bombing checkpoint in the of an Amer- to “turn ingly assisted young their attention from the men who convoy. ican planting were the device.” S.A. 323. Ac- B Tatel, cording we can overlook probative conspiracy the most evidence of proves The same evidence (1) a party any because forfeits facts as to prove is sufficient to the existence theory for which they explicitly are not conspiracy. Qarmout’s statement of civil (2) argued appeal, “the nev- Security per- that he asked the National by argu- er defends their claim checkpoint at the to “turn their sonnel ing, respect do with to their mate- young from who attention men were support Qarmout rial planted days planting explo- the device” before the the bomb with the help of those stationed sion, 323, a supports S.A. reasonable infer- checkpoint.” at the Tatel at 135. I agreement part ence of “an to take an respectfully disagree premises. with both Clinton, unlawful action.” Hall v. 285 (D.C.Cir.2002) 74, (quoting Hal- F.3d 83 A Welch, 472, 705

berstam v. F.2d 479 (D.C.Cir.1983)). The circumstances of the Forfeiture is the “failure to make a bombing report’s and the PA conclusion timely right.” assertion of a United States Security personnel tipped National off Olano, 725, 733, 1770, v. 507 U.S. 113 S.Ct. a the bomber reasonable inference (1993). 123 L.Ed.2d 508 Our forfeiture of “an overt tortious act furtherance of applies legal doctrine arguments, not injury.” agreement causes Id. facts. Assuming argument has been omitted) Halberstam, (emphasis (quoting properly court, raised the district we 479). Therefore, 705 F.2d at I would re- consider it if appeal argu- forfeited on grant verse the district court’s conclusory fashion, ment is addressed in a judgment on both claims. Gates, 888, Bryant see v. 532 F.3d 898 (D.C.Cir.2008), footnote, in a see

II FERC, Elec. Corp. NSTAR & Gas v. 481 Tatel, Judge 794, (D.C.Cir.2007); the deciding who casts vote F.3d if 800 it is claims, brief, on each of the Parsons reply raised for the first time in a Jackson, baby by splits separating with almost see Gen. Elec. v.Co. 610 F.3d 110, (D.C.Cir.2010), surgical precision the evidence advanced in or at argu- 123 oral ment, Southerland, support- this court for the various theories see United States v. 1355, (D.C.Cir.2007). ing each claim. The court affirms sum- 486 F.3d 1360 No mary judgment conspiracy on the claim similar rule bars our consideration of a ignores very Tatel placed because same material fact once it has been summary judg- dispute. Republic evidence we use to reverse Iraq Beaty, v. 556 Cf. 2183, 2192, ment on the material claim— 129 S.Ct. 173 L.Ed.2d (2009) that, Qarmout’s statement (assuming soon before 1193 the correctness of on proposition Mark Parsons was killed Salahadeen that “the President cannot fact”).4 Street, plant took steps waive And we have never held Auth., (D.C.Cir.1996). 4. That facts and law are cut from different 78 F.3d Like- general parties wise, cloth is evident in the rule that appeal parties may legal argu- on forfeit may stipulate legal facts but not conclusions. ments but not facts. Washington See Weston v. Metro. Area Transit to consider a fact powerless identify single holding are ease we that facts it was raised in the context simply because properly raised as to one claim are forfeit- concept of claim- of a different claim. another,5 ed as to implau- or—even more foreign is to facts be- specific forfeiture sibly facts asserted as to partic- one —that facts, legal arguments, unlike are cause theory ular are forfeited as to another A context-dependent. not fact cannot be theory recovery under the same claim. purposes and false for oth- true for some Tatel at 136. Cf. say jury we to a ers. What Granted, facts not in the may record not Qarmout planted found the bomb with re- court, upon be relied in this see Carr gard to the material claim but that Corning, (D.C.Cir.1950), plant regard he did not the bomb with party and a stipulates who admits or facts Hundley claim? v. Dis- Cf. Columbia, bound that concession appeal, see trict F.3d 1102-03 Warren, United States v. (ordering a trial F.3d new be- “[tjhere (D.C.Cir.1994).6 cause is no coherent or reasonable Even when the record way jury’s to reconcile the two conclu- contains relevant facts that have not been sions”). Judge Tatel’s treatment away, conceded “it is not the task of this family’s allegation Parsons is no more rea- court to search the support record for a fact in dispute, sonable. Once is it is ing evidence.” Edmond U.S. Postal before for all purposes; the court relevant Counsel, Serv. Gen. 949 422 F.2d n. 13 any claim as to which it is material is Greene, (quoting Tarpley v. inappropriate summary judgment. (D.C.Cir.1982)). 7 F.2d n. 17 But evidentiary principles these notes, are distinct Judge

As Tatel I have “not iden- forfeiture, from the doctrine of single tified a do even case saying” forfeiture prevent not us from considering Qarmout’s our forfeiture doctrine does not apply to at statement in Op. my conspiracy facts. Tatel 136. But failure to context. The precedent find proving family this Parsons negative only has never conceded—for highlights novelty argument. purpose his conspiracy its claim or for Far telling Judge more any Tatel’s purpose failure other did not —that Judge (Qarmout Tatel cites one says bomb) case in which he planted forfeited fact fits we properly treated factual assertions raised neatly. though as to one pur- claim as forfeited for poses of another claim. Tatel at 137-38 out, Judge points 6. As Tatel alleged facts at Powell, (citing Vickers v. 493 F.3d summary judgment by moving party are (D.C.Cir.2007)). Not so. In that Title VII treated by as "admitted” unless controverted case, plaintiff we noted argued “never non-moving party. Tatel at 136-37 that the discriminatory alleged various acts (citing 7(h)(1)). D.D.C. Local Civ. R. This her hostile work environment claim ... were only principle party illustrates the that a can- pretext” further evidence of in her retaliation assert, rely not on timely facts it has failed to Vickers, claim. 493 F.3d at 196. The rele- party and that a is bound its admissions. legal, vant forfeiture was not factual. Vickers controverted, But once a fact is controverted argued legal theory never a prior under which token, purposes. By for all the same a fact acts, by employees other than the official who purpose asserted for one is asserted for all her, prove fired could pretext. rightly We purposes. happened It either itor did not apply properly declined to those asserted facts happen. The rule of constructive admission legal argument to a Vickers had never articu- present Judge offers no lated. The Tatel’s notion case is different: The Par- family consistently sons has a fact argued legal legal asserted the context of one (whoever theory planted theory the bomb needed the is forfeited as to another unless re- guards’ complicity) into allegedly which the stated in the new context. plant clearly plaintiffs against the bomb. The district court the same the same defen- very did not think so: In the decision we dant go jury would to the same for both reviewing, Qarm are the court evaluated jury claims. It is for the weigh statement in the out’s context. evidence in context. Auth.,

Estate Parsons v. Palestinian (D.D.C.2010). F.Supp.2d And B appeal, family consistently on has conspicuously Qarm asserted about facts Even if plaintiffs we had to sever a that, true, if prove theory out would their claims from one another and examine planted conspired that whoever the bomb isolation proffered the evidence for each Authority. with the Palestinian claim, I still disagree sug-

Especially summary judgment gested application of this new rule. At the stage, speak it makes little sense to point critical operation, the Solo- “forfeiting” facts as to one claim but not monic scalpel slips. As Tatel must stage, scope another. For of acknowledge, the rely Parsons does our review is at its zenith. “In passing on Qarmout’s statement, not for the motion, judgment may court claim, but also for the specified consider materials in Federal conspiracy claim. In the section of its 56(c) Rule of Civil Procedure as well as addressing brief the conspiracy ‘any material that would be admissible or cites the relevant evidence ” at trial.’ usable Catrett v. Johns-Man and argues, is clear from “[i]t known-PRC- (D.C.Cir. Corp., ville Sales terrorist statement anyone 1987) omitted) (emphasis (quoting 10A C. that planted the bomb on [Salahadeen] A. Miller & M. Wright, Kane, Federal Street that killed Mark Parsons must have (2d 2721 ed. Practice and Procedure cooperation obtained the of the PA securi- 1983)); Adeyemi see also v. District of ty road, checkpoint on the which was 20 Columbia, (D.C.Cir. 1222, 525 F.3d 1227 meters from the site of the detonated 2008) (“When considering whether sum- bomb that killed Mark Appel- Parsons.” ..., mary judgment ... is warranted lants’ Br. Assuming validity court considers all relevant pre evidence compartmentalized Tatel’s approach defendant.”); plaintiff sented evidence, Qarmout’s to the statement is Vickers, (“On F.3d at 199 properly before the court as con- judgment, just plain we consider not [the claim, spiracy just not the material support allegations supporting tiffs] but also other claim. record.); evidence” Hall v. Giant Judge Tatel acknowledges this reference Food, Inc., (D.C.Cir. 1074, 175 F.3d 1999) (“The to statement but it construes court must all consider narrowly an argument that someone evidence in its full context in deciding Qarmout conspired other than himself summary judgment whether inap conceal, Authority plant, the Palestinian to propriate.” (quoting Washington Aka v. Ctr., (D.C.Cir. or detonate Hosp. Óp. the bomb. Tatel at 137. 156 F.3d 1998))). summary judgment The court thus affirms Qarmout clearly evidence is conspiracy on the claim for an prove “usable at trial” to not want of conspiracy, Catrett, just explicit allegation Qarmout support. conspired 826 F.2d at ignore Authority, despite 38. We need not it with the Palestinian simply because in support family’s argument was raised of a different Parsons —based proffered by Qarmout’s claim. The same evidence own statement —that whoever planted procuring agreement the bomb would have needed the ter an from National Authority’s cooperation. Security I do personnel, family clearly Palestinian and the context, conspiracy why, in the we theory not see articulated a to Qarmout’s likely circumstances, involve- ignore should match. Under these ment, very finding while same evidence was on notice of the sufficient to sustain a material Indeed, evidence it needed to rebut. task, at summary judg- claim. Our argument oral the Palestinian Authority all “in stage, initiative, ment is to view evidence repeatedly, and on its own venti- light nonmoving par- most favorable to the arguments against lated its probative ty and all Qarmout draw[ ] reasonable inferences value of the evidence in the con- Capitol Sprinkler Inspection, its favor.” spiracy 14:06-20, context. Arg. See Oral Servs., Inc., Inc. v. 630 F.3d Guest 223 15:20-16:37. party responds Where a (D.C.Cir.2011) (quoting Venetian Casino despite issue presentation, defects its Resort, EEOC, LLC v. 530 F.3d 929 that party has prejudice suffered no and a (D.C.Cir.2008)). Excluding Qarmout from court argument need not consider the for- family’s “anyone reference to feited. See MBI Group, Inc. v. Credit planted Cameroun, the bomb on [Salahadeen] Fonder du rule, (D.C.Cir.2010); Street” seems inconsistent with that Indus., Horizon Air Inc. especially after the has consistently Dep’t v. U.S. Transp., 850 F.2d argued Qarmout just (D.C.Cir.1988). did that and cited prove it. evidence Given the nature of the Parsons allegations, evidence prove sufficient C their material support claim is also suffi- possible facts, Even if it were to forfeit prove conspiracy. cient to way, Either if and even the Parsons had forfeit- family alleges the Palestinian Au- ed the evidence as to their con- thority agreed cooperate with whoever spiracy ignore would not that evi- planted the bomb. Where the prevailing dence. We have discretion to address theories of material conspira- issues, though forfeited we exercise it cy overlap here, as do a defendant is “only in exceptional circumstances” or to unlikely specially tailor a novel argu- plain correct error. Salazar v. District of against ment sufficiency of the evi- Columbia, (D.C.Cir. prove dence to conspiracy that he has not 2010). Where, here, the district court already raised in the material con- supposedly addressed the forfeited fact text. The counterargument same context, the relevant see Estate Par- of fails to defeat the material claim sons, 715 F.Supp.2d at forfeiting necessarily conspiracy fails in the context. party context, raised the parallel fact in a The overlapping family’s character of the Appellants’ 22-29, see Br. and the adverse claims was not lost on the Palestinian Au- party prejudice suffered no from the for- thority. it, As the PA expressed the Par- feiture, I would exercise our discretion to family sons cloaking is “sort of what is a consider the fact summary at judgment. conspiracy theory in a material support disagree

I Judge Tatel’s theory.” conclusion Oral Arg. 28:09-14. It is no Authority Palestinian suffered wonder then that the Parsons did prejudice from alleged forfeiture. The not equal space Qarmout devote made no secret of its evi- evidence each section of its brief. Cf. Qarmout dence that planted the Op. bomb af- Tatel at 136. That would have been great jury argument.” Because the Pal- “That’s a Id. repetitive and wasteful.7 respond weighing of the “[T]he could and did 22:43-47. evi- estinian drawing and the in- legitimate dence[ ] in the statement functions, context, jury ignore not that evidence. ferences from the facts are Anderson, judge.” not those of a All U.S. 253,106 2505. S.Ct. D Judge insufficiently Tatel also finds pro- Finally, persuaded if I were even then-Security bative Minister Muhammad evidence, I would still ignore the Dahlan’s statement that grant vote to reverse Forty percent Martyrs in this judgment against belonged Intifada Palestinian se- conspiracy claim. The conclusion of the curity forces. Authority’s investigative own Palestinian report recording and the video of Muham- security The Palestinian forces were Dahlan, mad former Palestinian Minister protected those who and hid half of the Security, sufficiently proba- of State are [military] leadership Hamas and of the get question jury. tive to to a military Hamas during force the Intifa- da. PA Judge report Tatel concludes the Watch, persuade

of insufficient “caliber” to a rea- Palestinian Media supra note 3. jury anonymous, it is un- right sonable because Tatel is that Dahlan’s state dated, ment, itself, prove and leaves unstated some does not “personnel facts on which it bases its inference of PA at this checkpoint complicit were in this complicity. (quoting Tatel at 134 attack.” Tatel But this addi Inc., Liberty Lobby, certainly Anderson v. All tional evidence credibility lends 242, 254, 106 S.Ct. 91 L.Ed.2d 202 to the investigative conclusions the PA’s (1986)). neglects report. Treating This conclusion the in- each piece of evidence in vestigative report’s provenance, treating may it isolation lead to an erroneous view of friendly Obama, as if it were a declaration rather the whole. See Al-Adahi v. (D.C.Cir.2010) (“Those than party-opponent admission is. F.3d already argued, supra As I have 141— who not account pp. do take into conditional report government probability prone is a record enti- are to making mistakes presumption regularity. judging They may tled to a evidence. think that Authority argues might particular there if a fact prove does not itself explanations guards’ be innocent proposition may ultimate the fact be prevent planting failure to of a may bomb tossed aside and the next fact be exist.”), twenty checkpoint: meters front of their evaluated as if the first did not — all, denied, Strip place, U.S.-, is a chaotic After Gaza cert. 131 S.Ct. (2011). may planted and the bomb have been un- 178 L.Ed.2d 855 Parsons was guard Intifada, der cover of or when a during darkness was killed the Second and But, Arg. sympathy distracted. See Oral 22:20-43. Dahlan’s statement about Judge argument, Authority security Tatel said oral Palestinian har- forces Judge family's reply by 7. Tatel faults the Parsons brief does demonstrate the PA’s error correcting brief for not the Palestinian Au- merging its treatment of and thority's misimpression report the PA conspiracy single into a discussion about the only conspir- was the evidence relevant to the sufficiency Appel- evidence. acy agree claim. Tatel I 136-37. Reply lants' Br. 9-12. clearer, reply could have been but its lerth, 742, 764, 118 may 2257, 141 a goals its inform rea- 524 U.S.

bored toward S.Ct. (1998) reliability L.Ed.2d 633 jury’s (“accommodat[ing] view about the of sonable agency together principles liability with the of vicarious Viewed other evidence. supervisory harm caused misuse of au statement increases report, PA Dahlan’s VII). thority” in Title Foreign Sover- the Palestinian the likelihood eign Immunity Act confirms that to the responsible was with whoever conspired immune, extent it is not a “foreign state jury’s job It bombing. is the for the shall be liable the same manner Not ours. weigh this evidence. private the same extent as a individual Ill under like circumstances.” 28 U.S.C. expla- court stated without The district § Respondeat superior liability have no basis on which to nation that “we elementary principle of tort law and liability PA for vicarious assign interpretation must therefore inform our employees.” criminal acts of few alleged of the federal torts created in the Anti- Parsons, F.Supp.2d at 34. Estate Thus, Terrorism Act. Au- of have never so held. Roeder v. We thority for the employees is liable acts its Cf. Iran, Republic Islamic scope committed within the of their em- (D.C.Cir.2003) (barring n. 4 234 & ployment. See Wilson v. Good Humor (D.C.Cir.1985). reaching Act suit without Anti-Terrorism Corp., 757 F.2d liability argu- the defendant’s vicarious Authority argues The Palestinian it can- ment). Judge Henderson Tatel vicariously not be held liable for its em- deciding avoid whether the Palestinian Au- ployees’ acts because the ATA awards thority can be liable for the actions of held damages, which treble the Palestinian Au- Security checkpoint personnel its National thority equates punitive damages; by affirming summary judgment on the damages may punitive be award- grounds. claim on other liability theory ed under vicarious if the would reach this issue and reverse. authorized, ratified, principal approved act, or if agent employed was in a premise start from the when

“[W]e managerial capacity and committed the Congress adopts tort it creates federal act within the scope employment. of his general tort law.” background — ABA, Appellees’ (citing Br. 51 Kolstad U.S.-, Hosp., Staub v. Proctor 526, 542-43, 527 U.S. 119 S.Ct. (2011). 1186, 1191, S.Ct. 179 L.Ed.2d 144 (1999) (quoting L.Ed.2d 494 Restatement with this principle, Consistent Su- (Second) (1958))).8 Agency 217C preme Court has looked to common law scope doctrines to determine the of liabili- The Palestinian Authority’s central ty laws, under federal see Burlington tort premise is false. Treble damages are stat- States, Ry. N. & Santa Fe v. United 556 utory liquidated damages punitive —not 1870, 1881, 129 S.Ct. 173 L.Ed.2d Restatement, damages. The on which the (2009) intended (“Congress scope relied, explicitly exempts Kolstad Court liability to be determined [CERCLA] damages punitive damages treble from the from evolving principles traditional and exception to its liability vicarious rule. See (Second) (quotation 217C, (c) common law.” § mark and altera- Restatement cmt. (“The omitted)), liability tion of vicarious and rule stated in this not Section does Indus, particular, Burlington apply interpretation special see v. El- to the of stat- recklessly employing malfeasing 8. The Palestinian does not mention "acts Kolstad, 543, agent” that Kolstad and the Restatement also allow See 527 U.S. at 119 punitive damages against principal who S.Ct. 2118.

149 giving triple damages, utes such as those that for purposes of selecting applica made.”). as to which no statement is liability, ble standard for vicarious treble damages punitive. Indeed, are not Supreme Court’s statement of the Supreme held, Court already had in the punitive damages exception to vicarious context, antitrust damages treble do liability entirely consistent that score trigger heightened not standard for court, underlying with the opinion of this liability. vicarious Am. Soc’y En Mech. of explicitly which distinguished treble dam- gineers, Hydrolevel Inc. v. Corp., 456 U.S. ages damages. from punitive Kolstad v. 556, 575-76, 102 1935, S.Ct. 72 L.Ed.2d 330 958, 139 F.3d 966-67 ADA (1982) (“Since treble damages serve aas (en banc), grounds, vacated on other deterring means of antitrust violations and 526, 2118, 119 S.Ct. 144 L.Ed.2d 494 victims, of compensating inis accord (1999). In opinion we “dou- classified with purposes both the of the antitrust damages” “numerically ble treble laws and principles agency of law to hold equal compensatory liquidated and dam- principal] [the for agents liable the acts of ages” single for violation and concluded (cit committed with apparent authority.” quite “it is another [thing] leverage (Second) ing Restatement Agency of compensatory punitive award into a award 217C, (c))). cmt. I see no basis for a is ten or a greater, hundred times exception terrorism Supreme to the showing heightened with no of culpability.” Court’s rule.10 967; Id. at (“liqui- see also id. at 966-67 damages dated under ADEA puni- The district court evaluated the Pales- damages tive under Title VII are not tinian Authority’s report twins”). Although courts have character- testimony under the assumption false damages “punitive” ized treble as for other to support have “a purposes,9 opinion our Kolstad makes against clear claim the entire PA” to go to a Insulation, NLRB, 9. See Petrochem agreement Inc. v. whether an pre- arbitration which (D.C.Cir.2001) (deferring punitive F.3d damages cluded also barred treble RICO). "company’s damages NLRB’s citation of a decision to under damages seek treble as additional evidence of retaliatory noting motive” but that "had the legislative history 10. The ATA’s confirms that might suit not been so meritless —our view be primary purpose statutory multipli- (citing different” terrorism, Kline v. Coldwell Banker & er is to deter future acts of not to Co., (9th Cir.1974) (charac 508 F.2d punish culpability. the defendant's moral See terizing damages puni antitrust treble as Hearing Antiterrorism Act 1990: on S. 2465 tive))); Long United States ex rel. v. SCS Bus. the Subcomm. on Courts and Adminis- Before Inst., Inc., & Tech. Comm., 173 F.3d Judiciary trative Practice the S. (D.C.Cir. 1999) (characterizing damages (1990) (statement treble Cong. 101st of Steven R. Valentine, Gen., under the False Claims Act "a form of Deputy Att’y Assistant Civil punitive damages palpably Division) ("[The that would be in- provides ATA] a federal fo- liability”); Fleming consistent with state v. any rum for national of the United States to FTC, (D.C.Cir. 1982) 314-15 compensation seek in the form of treble dam- (concluding that a civil antitrust suit for ages treble injuries resulting for from acts of inter- damages terrorism”); constitutes an official law (statement enforce national id. at 85 6(f) 21(b)(6) purpose Morris, §§ ment under Joseph A. President and General Improvements the Federal Trade Commission Foundation) Legal Counsel of the Lincoln Act of 1980 because such suits are not C’[B]y provisions compensatory its dam- compensatory "remedial and in nature” but ages, damages, imposition treble and the "punitive prophylactic’’); also Pa- liability any see also point along the causal chain of Book, terrorism, Sys., Health Inc. 538 U.S. interrupt, it would or at least im- cifiCare 401, 406-07, peril, 123 S.Ct. 155 L.Ed.2d 578 the flow of terrorism’s lifeblood: mon- (2003) (leaving question ey.”). for the arbitrator the Parsons, F.Supp.2d thoroughly, er so but in this hard case it jury. Estate of Instead, may just of an individu- be as well. With narrow us, acting scope holding within the between we have at least employee al PA avoid- the PA making suffices make ed bad law. employment his Wilson, 757 F.2d at 1301. itself liable. See standard,

Under conspiracy involving National alleged

has for which the Palestini-

Security personnel Authority may be held liable. would

reverse.

IV my experience,

In it is rare for three judges disagree each oth-

appellate

Case Details

Case Name: Estate of Parsons v. Palestinian Authority

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Aug 12, 2011

Citation: 651 F.3d 118

Docket Number: 10-7085

Court Abbreviation: D.C. Cir.