Estate of Mark Parsons v. Palestinian Authority ( 2010 )

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).
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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
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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
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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.
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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.
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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
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