Estate of Mark Parsons v. Palestinian Authority

• Court: District Court, District of Columbia
• Decided: May 29, 2010
• Docket: Civil Action No. 2007-1847
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ESTATE OF MARK PARSONS, et al., : : Plaintiffs, : : v. : Civil Action No. 07-1847 (JR) : THE PALESTINIAN AUTHORITY, et : al., : : Defendants. :

MEMORANDUM

On October 15, 2003, Mark Parsons was traveling near

the Ben Hanoun junction in northern Gaza, Palestine, as part of a

security detail escorting United States diplomats to interview

applicants for Fulbright scholarships. A remote control bomb

denoted near Parsons’ vehicle, killing him and two others.

Parsons’ estate, his siblings, and the estate of his parents

(collectively, “plaintiffs”) bring this action against the

Palestinian Authority (“PA”) and the Palestinian Liberation

Organization (“PLO”) under the Antiterrorism Act of 1991 (“ATA”),

18 U.S.C. § 2331 et seq., alleging that they bear responsibility

for the bombing.

At the motion to dismiss phase, I permitted the

plaintiffs to proceed to discovery even though they could not

identify the entity responsible for the attack. See Dkt. #14 at

11-12. Plaintiffs now contend that Amer Qarmout and/or the

Popular Resistance Committee (“PRC”), a militant organization in Palestine, committed the attack, and they contend that the PA and

PLO have a sufficiently close relationship to Qarmout, the PRC,

and the bombing to justify holding them liable. Defendants now

move for summary judgment. For the reasons that follow, the

motion must be granted.

Analysis

I. Palestinian Liberation Organization

While plaintiffs’ claims against the PA require

extended analysis, their claims against the PLO can be dismissed

quickly. All of the plaintiffs’ evidence, discussed below,

relates to the PA. While the Complaint may aver that PLO in

actuality controlled the PA during all relevant times, see Compl.

¶ 9, at the summary judgment stage evidence is required. None

has been provided. Summary judgment will granted on all claims

against the PLO.

II. Palestinian Authority

I previously granted the defendants’ motion to dismiss

the plaintiffs’ common law claim (Count Five) and denied the

motion to dismiss the plaintiffs’ ATA claims (Counts One through

Four).1 See Dkt. #14. Under the ATA, “[a]ny national of the

United States injured in his or her person, property, or business

1 Count Six, which seeks punitive damages, was asserted in connection with the non-ATA claim and must be dismissed. See Smith v. Islamic Emirate of Afghanistan, 262 F. Supp. 2d 217, 240 (S.D.N.Y. 2003) (punitive damages not available under the ATA, which already offers treble damages).

- 2 - by reason of an act of international terrorism, or his or her

estate, survivors, or heirs, may sue therefor in any appropriate

district court of the United States.” 18 U.S.C. § 2333.

“International terrorism” is defined by the ATA as activities

that, among other requirements, “involve violent acts or acts

dangerous to human life that are a violation of the criminal laws

of the United States or of any State, or that would be a criminal

violation if committed within the jurisdiction of the United

States or of any State.” 18 U.S.C. § 2331(1)(A).

A necessary predicate to any finding that the PA

engaged in “international terrorism,” is a finding that the PA

violated one of three federal criminal statutes. Plaintiffs

allege, first, that the PA violated 18 U.S.C. § 2339A, by

providing material support to aid in the killing of a U.S.

national outside of the United States. They allege second, that

the PA conspired to kill a U.S. national outside of the United

States, in violation of 18 U.S.C. § 2332(b). And they allege,

third, that the PA violated 18 U.S.C. § 2339B, which criminalizes

knowingly providing material support to a “foreign terrorist

organization.” I will discuss each predicate criminal act in

turn.

- 3 - A. Material support for killing (§ 2339A)

1. Legal standard

Section 2339A prohibits “supply[ing] material support

or resources,” “knowing or intending that they are to be used in

preparation for, or in carrying out a violation of” other

specified provisions of the U.S. criminal code, including 18

U.S.C. § 2332, which prohibits the killing of a U.S. national

outside the United States. To determine whether a defendant has

provided material support for a terrorist act under § 2339A, a

court must determine (1) what terrorist organization or

individual carried out the attack, and (2) whether the defendant

provided material support to that entity or individual. See

Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53, 67 (D.D.C.

2008); Ben-Rafael v. Islamic Republic of Iran, 540 F. Supp. 2d

39, 46 (D.D.C. 2008); see also Linde v. Arab Bank, PLC, 384 F.

Supp. 2d 571, 585 (E.D.N.Y. 2005) (plaintiffs must prove that the

defendant provided material support “to the particular group

responsible for the attacks giving rise to their injuries”).

Central to the material support predicate, then, is the

requirement that the plaintiffs prove who committed the attacks.

This is where plaintiffs’ case falters.

2. Alleged bombers

The plaintiffs first assert that Amer Qarmout and his

agents planted the bomb. The PA conducted an investigation of

- 4 - this bombing, and plaintiffs rely primarily on PA investigation

files to oppose the summary judgment motion. During the

investigation, the PA detained six individuals for questioning,

including Qarmout, who was a member of the PRC. Def. St. Mat.

Facts Not in Dispute ¶ 11; Resp. Ex. B at 7. Under

interrogation, Qarmout admitted to having obtained four bombs.

Def. St. Mat. Facts ¶ 13. He also stated that, three days before

Parsons was killed, he supervised the digging of a hole for a

bomb by the street in which the bomb that killed Parsons

detonated, and he stated that he asked PA security officers to

help with the digging. Id. ¶ 15. All six of the arrested

individuals denied responsibility for the attack, however, and

Qarmout himself stated that he called off the actual planting of

the bomb. Id. ¶¶ 15-16.

Evidence that someone prepared to do something is of

course relevant to the question whether the person actually did

it. But in light of his denial of actually orchestrating the

bombing, Qarmout’s admissions are not sufficient to carry the

plaintiff’s burden, and the plaintiffs have no other admissible

evidence to link Qarmout to the bombing.2

Even if they cannot prove Qarmout’s responsibility in

particular, the plaintiffs argue that they can show that the PRC,

2 There is also at least some indication that the bomb had been present for 20 days prior to the explosion, see Resp. Ex. A at 3, contrary to Qarmout’s account.

- 5 - in general, is responsible for the bombing. The plaintiffs first

point to what purports to be a PA report (“the Report”) addressed

to the Director General of the Preventive Security Force (the PA

police, essentially). In the section entitled “Conclusion and

personal interpretation of what happened according to information

in my possession,” the Report states that the explosive device

used in the bombing has a structure similar to that of bombs used

by the PRC. Resp. Ex. A. at 3. Although the PA argues that the

entire conclusion section should be disregarded because of its

heading, this information is essentially of a factual nature and

does have some relevance, as it tends to show a pattern or

practice by the PRC. On the other hand, because the Report is

undated and anonymous, its weight is minimal.

The plaintiffs next refer to an internal U.S. State

Department memorandum, which that memo indicates that the State

Department received a report from the Agence Frace-Presse

(“AFP”), an international news wire agency, to the effect that

the PRC claimed responsibility for the bombing in an anonymous

phone call to the AFP. See Resp. Ex. D at 34-35. Given the

multiple levels of hearsay involved, this report is not

admissible evidence. See, e.g., Fowler v. Smith, 68 F.3d 124,

126 (5th Cir. 1995). Even if it were admissible, the report

notes that AFP itself had doubts about the claim. See Ex. D to

Resp. 34-35.

- 6 - The plaintiffs next offer the affidavit of Dr. Matthew

Levitt, an expert on terrorism in the Middle East.3 See Resp. Ex.

J. The report details extensive ties between the PRC and

designated FTOs, and it provides a list of attacks “claimed by or

attributed to the PRC.” Id. at 97-101. What the report does not

do is offer any additional information that would support a

finding that the PRC was responsible for the attack that killed

Parsons. It lists the Parsons bombing as an attack “claimed by

or attributed to the PRC,” id. at 100, but to say the attack was

“claimed by” the PRC is not to say that it was actually committed

by the PRC; and to say that the attack has been “attributed to”

the PRC, in the passive voice, does not even assert Dr. Levitt’s

own opinion. The citations supporting the bullet points

discussing the Parsons attack -- such as that the PRC at one time

claimed responsibility for the attack, and that the PRC had

previously used the type of bomb employed in the attack –– are in

the record elsewhere and consist for the most part of news

articles and State Department reports. Id. at 100. Expert

opinions may be based on hearsay, but they may not be a conduit

3 The PA argues that I should not consider Dr. Levitt’s affidavit because he was not properly designated as an expert pursuant to Rule 26(a)(2). The plaintiffs had only referred to him as a “[c]onsultant [or] [n]on-[t]estifying [e]xpert,” see Reply Ex. 2 at 2-3, prior to filing their opposition. The objection is overruled: the PA had fair notice that the plaintiffs were employing Dr. Levitt’s services. Because I do not find Levitt’s affidavit to be significantly probative, however, the Rule 26(a)(2) dispute is of no consequence.

- 7 - for the introduction of factual assertions that are not based on

personal knowledge. See Fed. R. Civ. P. 56(e)(1). The

conclusion section also falls short of attributing the Parsons

attack to the PRC; it merely asserts that the PRC has carried out

numerous terrorist attacks. Id. at 105.

Plaintiffs’ admissible proof boils down to a single

admissible fact -- that the bomb that killed Parsons was similar

in structure to those used by the PRC in the past. The rest is

speculation and conjecture. No reasonable juror could conclude

on the basis of this evidence alone that the bomb that killed

Parsons was placed by the PRC.4 Accordingly, I need not reach the

second part of the § 2339A analysis –- the question of whether

the PA supplied material support to the attacker.

B. Conspiracy (§ 2332(b))

Under 18 U.S.C. § 2332(b), it is a crime for someone

outside the U.S. to “attempt[] to kill, or engage[] in a

conspiracy to kill, a national of the United States.” To

establish a conspiracy under § 2232(b), the plaintiffs must prove

that the defendant “(1) knew about the aims and objectives of the

[alleged] criminal conspirac[y], (2) agreed to the essence of

4 There is evidence that Qarmout is a PRC member, so it may be sensible to consider the evidence related to Qarmout and the PRC together. Nevertheless, as I discussed above, the bare fact that the bomb used resembles PRC bombs of the past adds so little weight to the Qarmout evidence that the evidence remains insufficient to establish the identity of the bomber.

- 8 - these objectives, and (3) performed acts . . . intended to

further these objectives.” In re Terrorist Bombings of U.S.

Embassies in E. Africa, 552 F.3d 93, 114 (2d Cir. 2008). While

the party seeking to prove the conspiracy “need not present

evidence of an explicit agreement,” id. at 113 (quoting United

States v. Gordon, 987 F.2d 902, 906 (2d Cir. 1993)), he or she

must at least show that an agreement existed. And while these

plaintiffs need not prove the identity of the actual bomber, they

must show that the PA knowingly entered into an agreement to kill

a U.S. national and performed acts to further that goal.

Here again plaintiffs rely primarily on the anonymous

Report. The Report states that the bomb that killed Parsons was

planted 20 meters in front of a PA security checkpoint, see Resp.

Ex. A at 3, and it is undisputed that the lead car in the convoy

was a PA police car. The Report writer states his belief that PA

security officials at the checkpoint must have been aware of the

bomb’s presence and that information on the arrival of the U.S.

convoy must have been leaked, either by the PA security officers

or by someone in the convoy. That is speculation, not

evidence –- and anonymous speculation, at that. The plaintiffs

also point to a PA document, obtained by the Israeli government,

that relates to bomb-making, including bombs that contain nitric

acid. See Resp. Ex. H. The FBI found that the bomb in this case

contained urea nitrate, which can be produced using nitric acid.

- 9 - See Resp. Ex. E at 39. Intelligence reports that contain multiple

levels of hearsay are not admissible evidence, and a report that

the PA makes bombs does not prove that they made this bomb.

Qarmout’s statement that he asked PA security officers to look

the other way while he dug a hole for a bomb offers no support

for a conspiracy claim against the entire PA: Qarmout denies

actually placing the bomb; Qarmout does not say whether the

security officers complied with his request; and we have no basis

on which to assign vicarious liability to the PA for the alleged

criminal acts of a few employees. See Resp. Ex. C. at 19.

C. Support for Foreign Terrorist Organization

The allegation that the PA supported a “foreign

terrorist organization,” or “FTO,” in violation of 18 U.S.C.

§ 2339B, is not viable. The statute defines “terrorist

organization” as “an organization designated as a terrorist

organization under section 219 of the Immigration and Nationality

Act.” 18 U.S.C. § 2339B(g)(6). Section 219 in turn establishes

a detailed procedure by which the Secretary of State may

designate entities as FTOs. See 8 U.S.C. § 1189. The Secretary

of State has not designated the PRC a terrorist organization.

The plaintiffs argue that FTO status may be

“transferred” according to “ordinary principles of agency law,”

citing National Council of Resistance of Iran v. Dep’t of State,

373 F.3d 152, 157 (D.C. Cir. 2004). See also National Council of

- 10 - Resistance to Iran v. Dep’t of State, 251 F.3d 192, 200 (D.C.

Cir. 2001) (Secretary of State can “transfer” a designation when

an FTO changes its name). Plaintiffs argue that Hamas, which is

a designated FTO, so dominates and controls the PRC that Hamas’s

FTO designation transfers to the PRC. The National Council case

turned, however, on express statutory authority, granted only to

the Secretary of State by 8 U.S.C. § 1189. See id.

It is true that a number of district courts have relied

on the National Council decisions to justify analyzing whether an

entity is an alias or agent of an FTO. See Goldberg v. UBS AG,

660 F. Supp. 2d 410, 432-33 (S.D.N.Y. 2009); Weiss v. Nat’l

Westminster Bank PLC, 453 F. Supp. 2d 609, 623 (E.D.N.Y. 2006);

Strauss v. Credit Lyonnais, S.A., 2006 U.S. Dist. LEXIS 72649

(E.D.N.Y. Oct. 5, 2006). Even if I were to follow the lead of

those courts, however, it would not avail plaintiffs. Findings

that the PRC is an agent of a designated FTO, and that the PA

gave material support to the PRC in violation of § 2339B, would

establish the necessary predicate criminal act, but would not

solve plaintiffs’ problem of proving that Parsons’ death occurred

“by reason of” the predicate criminal act.5

5 As I stated in my earlier opinion, courts have not settled on a causation standard for the ATA. See Parsons v. PLO, Dkt. #14, slip. op. at 11 (D.D.C. Sept. 30, 2008). The Seventh Circuit recently adopted a “relaxed” causation standard under the ATA. See Boim v. Holy Land Found. for Relief & Development, 549 F.3d 689, 695-98 (7th Cir. 2008) (en banc). However, at least one court has read “by reason of” in the ATA to require proximate

- 11 - III. Discovery

Plaintiffs have opposed the summary judgment motion on

the merits, but they have also moved in the alternative for

additional discovery under Rule 56(f).

Plaintiffs request discovery in two categories. First,

they request the opportunity to take depositions of certain

individuals. The details of this request must be gleaned from

plaintiffs’ briefing, because all the Rule 56(f) affidavit states

on the subject is that “[i]n Plaintiffs’ Memorandum of Points and

Authorities in Opposition to Defendants’ Motion for Summary

Judgment, Plaintiffs have advised the Court that there are

essential facts to justify their opposition which have not been

presented because of the Defendants’ opposition to discovery that

Plaintiffs’ [sic] sought.” 56(f) Decl. ¶ 3, attached to Resp.

The details of the defendants’ alleged “opposition” are also left

to the plaintiffs’ brief and to a number of exhibits of emails

and letters between counsel (which by themselves do not present a

clear picture of noncooperation).

cause, see Rothstein v. UBS AG, 647 F. Supp. 2d 292, 295 (S.D.N.Y. 2009), and the statutory term “by reason of” generally is read to import a proximate cause standard. See Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 265-68 (1992) (RICO civil suits); Associated Gen. Contractors v. Cal. State Council of Carpenters, 459 U.S. 519, 531-36 (1983) (Clayton Act § 4); Loeb v. Eastman Kodak Co., 183 F. 704, 709-10 (3rd Cir. 1910) (Sherman Act § 7). Here, the plaintiffs concede that a proximate cause standard is appropriate. See Resp. 14.

- 12 - Defendants vigorously oppose plaintiffs’ contentions

that they have obstructed discovery and that the depositions

would be likely to support plaintiffs’ case. In the face of that

opposition, plaintiffs’ barebones Rule 56(f) affidavit is

insufficient. Rule 56(f) permits the court to allow more

discovery if the party opposing summary judgment “shows by

affidavit that, for specified reasons, it cannot present facts

essential to justify its position.” The affidavit “cannot be a

generalized, speculative request to conduct discovery but must

demonstrate that further specified discovery will defeat a

summary judgment motion.” Maduforo v. Urban Serv. Sys. Corp.,

2009 U.S. Dist. LEXIS 66591, at *2-3 (D.D.C. July 31, 2009)

(emphasis omitted). Plaintiffs’ affidavit, which seeks to

incorporate by reference what amounts to unsupported argument,

falls short of what the rule requires.

Second, plaintiffs request an opportunity to acquire

additional information about their investigations from the United

States and Israeli governments. 56(f) Decl. ¶¶ 4-6. But until

now plaintiffs have made only casual efforts to obtain such

information -- calling and writing letters to Israeli officials,

and placing a single telephone call to the Acting Head of the

National Security Division at DOJ, see id. ¶¶ 4-5. They have

made no showing, by affidavit or otherwise, that more thorough

and formal efforts would be successful.

- 13 - Conclusion

The plaintiffs motion for additional discovery will be

denied, and the defendants’ motion for summary judgment will be

granted. An appropriate order accompanies this memorandum.

JAMES ROBERTSON United States District Judge

- 14 -