ESTATE OF PARSONS v. PALESTINIAN AUTHORITY
651 F.3d 118 (2011)
ESTATE OF Mark PARSONS, et al., Appellants
v.
PALESTINIAN AUTHORITY, also known as Palestinian Interim Self-Government Authority and Palestinian Liberation Organization, also known as PLO, Appellees.
No. 10-7085.
United States Court of Appeals, District of Columbia Circuit.
Argued March 15, 2011.
Decided August 5, 2011.
Reissued August 12, 2011.
Before: HENDERSON, TATEL, and BROWN, Circuit Judges.
Opinion for the court filed by Circuit Judge TATEL.
Opinion concurring in part and dissenting in part filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge TATEL.
Opinion concurring in part and dissenting in part filed by Circuit Judge BROWN.
TATEL, Circuit Judge:
While providing security for a U.S. State Department convoy in the Gaza Strip, Mark Parsons was killed by a roadside bomb. Parsons's estate and his family sued the Palestinian Authority under the Anti-Terrorism Act of 1991, alleging that the Authority had provided material support for and conspired with the terrorist or terrorists who detonated the bomb. Concluding that the Parsons family had produced insufficient evidence to create genuine disputes of material fact on these Anti-Terrorism Act claims, the district court granted summary judgment to the Palestinian Authority. Although we agree with the district court that the family's conspiracy claim theories are too speculative to survive summary judgment, we believe a reasonable juror could conclude that Palestinian Authority employees provided material support to the bomber. Accordingly, we affirm with respect to the conspiracy claim but reverse as to material support.
I.In the midst of the Second Intifada, on October 15, 2003, a United States Department
of State convoy traveled through the Gaza Strip on the way to interview Palestinian Fulbright Scholarship applicants. Besides State Department officials, the convoy included a Palestinian Authority Civil Police car in the lead position and DynCorp International employees under contract with the State Department to provide security. While the convoy traveled along Salahadeen Road, approximately 20 meters — or about one-fourth of a city block — from a manned Palestinian Authority security checkpoint, a roadside bomb exploded, killing DynCorp employee Mark Parsons and two of his co-workers. Immediately after the bombing, Palestinian Authority security and police forces took control of the site, gathered forensic evidence, and launched an investigation run by the Palestinian Authority's Preventive Security Services. United States and Israeli authorities also launched their own investigations.
During its investigation, the Palestinian Authority detained and interrogated six suspects, "a number of" whom, according to the official having overall responsibility for the investigation, "admitted to possessing and planting explosive charges in the past, targeted at Israeli military incursions into Gaza." One of those suspects was Amer Qarmout, a leader of the Popular Resistance Committees ("PRC"). During his interrogation, Qarmout recounted how, two or three days prior to the bombing, he supervised the digging of a hole on Salahadeen Street in which he planned to place a bomb. Qarmout and "fellow members in the Resistance" dug the hole "in front of the [Palestinian Authority] National Security Service." Qarmout explained: "I introduced myself to the National Security soldiers and asked them to turn their attention from the young men who were planting the device." But denying he ever planted a bomb, Qarmout claimed that after the "explosion targeting the U.S. convoy took place ... I called Joma'a Abou Loze[, who had helped dig the hole,] and asked him not to move about in the place and not to plant the device because of the dangers involved."
Qarmout also admitted to having possessed three bombs one month prior to the bombing. He described the bombs as using detonating cables, employing urea as the explosive material, and weighing 30 to 35 kilograms, 20 to 25 kilograms, and 10 to 12 kilograms. According to Qarmout, it was the 12 kilogram bomb that he had intended to plant on Salahadeen Road.
1. I join the judgment affirming the summary judgment grant to defendant Palestinian Authority on the Parsons family's conspiracy claim.
2. [Redacted] was [Redacted] Gaza" at the time of the explosion. [Redacted] Decl. ¶ 7. In that role he [Redacted] into the event. Id. ¶ 8.
3. Judge Brown urges that a statement by a former head of the PSS that Palestinian security forces aided Hamas and martyred themselves during the Second Intifada "tends to support [the] conclusion" that PA personnel at the security checkpoint at least disregarded the risk that their conduct would aid in the killing of Americans. Opinion of Judge Brown at 142-43. The PSS official's statement is an English translation found on the website of Palestinian Media Watch, an Israeli research institute, of an excerpted news clip from 2007. Assuming arguendo the website accurately translated the statement, the statement does not suggest that PA personnel would have known the bomb would target Americans.
4. I find the Parsons family's claim speculative for another reason. For PA personnel at the checkpoint — and even more so, in the convoy — to have "tipped" the bomber to the U.S. embassy staff's arrival means that those personnel had to have calibrated with pinpoint accuracy that the explosion would not affect them — otherwise, they risked their own lives as well.
5. I disagree with Judge Brown that the [Redacted] Declaration supports inferences favorable to the Parsons family regarding the reliability and knowledgability of the memorandum's author. See Brown Op. at 140-41. The relevant portion of the [Redacted] Declaration states:
The PSS kept an investigative file documenting the investigation, interviews, interrogations and the forensic analysis provided by the FBI. Copies of those files were provided to counsel for the PA and PLO in this matter, and I understand copies were then provided to Plaintiffs' counsel. I was responsible for collecting, assembling, and producing the investigative file produced in this matter and for verifying that the records produced are authentic copies of records kept in the course of the investigation into the bombing.
[Redacted] Decl. ¶¶ 17-18. [Redacted] statement that he was responsible for verifying that the records were "authentic copies" does not mean that he also verified the substance of each record. It means only that he verified that the records provided to counsel for the PA and PLO were accurate reproductions of records held by the PSS — without necessarily endorsing any statements or conclusions in those records. After the above-quoted passage, moreover, the Declaration discusses — in several paragraphs that all begin "I have reviewed the investigative file ...." — the evidence contained in Qarmout's statement, a "true and correct copy" of which is attached to the Declaration as exhibit 1. See id. ¶¶ 19-22. In contrast to the extensive discussion of Qarmout's statement, the Declaration does not mention the memorandum. Nor is the memorandum attached as an exhibit to the Declaration, as Qarmout's statement is. Accordingly, I find nothing in the [Redacted] Declaration that supports the reliability or authoritativeness of the memorandum.
6. Even under his compartmentalized approach, moreover, Judge Tatel concedes that the PA raised section 2339A's scienter requirement as a defense to the Parsons family's "Qarmout theory." Tatel Op. at 138. He nonetheless contends that the PA's claim that "[t]here is no evidence that Qarmout would have targeted a U.S. diplomatic convoy," Appellees' Br. 37 — which claim immediately follows the PA's explanation that Qarmout was known to attack Israeli military targets — "deals with whether Qarmout committed this attack, not with the state of mind of the personnel at the checkpoint." Tatel Op. at 138. If, however, the personnel at the checkpoint did not believe — because there was no evidence to support the belief — that Qarmout would target a U.S. convoy, any support they may have provided Qarmout would not have been given knowing or intending (or recklessly disregarding whether) it would be used to kill a U.S. national.
1. Consistent with Judge Tatel's compartmentalized approach to the evidence, which I address below, see infra pp. 143-47, he deals with Judge Henderson's scienter argument by finding the Palestinian Authority "never identifies section 2339A's state of mind requirement as a problem for the specific theory we now accept, namely, that the personnel posted at the checkpoint agreed to Qarmout's request not to interfere with his efforts to plant a bomb." Tatel Op. at 138. But the PA's argument is the same for every theory — namely, that the guards did not know they were materially supporting the killing of an American as opposed to, say, an Israeli. I think it is sufficient for a party to raise a statutory scienter defense once for the whole claim to which it applies. It is not necessary to rehearse the same statutory argument for each specific theory of liability. Precise arguments certainly benefit the judicial process, but we are judges, not robots. Cf. Henderson Op. at 132 ("Judge Tatel unrealistically parses the PA's defense into discrete and seemingly unrelated arguments."). Moreover, the Parsons family conceded that liability under the material support statute requires scienter as to the nationality of the victim, Oral Arg. 9:50-10:06, so they cannot argue they were unfairly prejudiced by the form of the Palestinian Authority's arguments.
2. Judge Henderson notes the [Redacted] Declaration does not explicitly discuss the PA report as it does Qarmout's statement. Henderson Op. at 129-30 n. 5. But [Redacted] failure to single out the report from the rest of the PA's investigative file is hardly evidence that it is unreliable.
3. Contrary to Judge Henderson's implication, cf. Henderson Op. at 129 n. 3, the record contains not just an English translation, but the video clip of Dahlan's statement itself, complete with Arabic audio. See Palestinian Media Watch, PA Security Forces Aided Hamas During Intifada, PMW, http://www.palwatch.org/main.aspx?fi=713&fld_id=713&doc_id=864 (last visited July 22, 2011). Presumably the video and its translation could be authenticated at trial. See Tatel Op. at 133.
4. That facts and law are cut from different cloth is evident in the general rule that parties may stipulate facts but not legal conclusions. See Weston v. Washington Metro. Area Transit Auth., 78 F.3d 682, 685 (D.C.Cir.1996). Likewise, on appeal parties may forfeit legal arguments but not facts.
5. Judge Tatel cites one case in which he says we treated factual assertions properly raised as to one claim as though forfeited for purposes of another claim. Tatel Op. at 137-38 (citing Vickers v. Powell, 493 F.3d 186, 196 (D.C.Cir.2007)). Not so. In that Title VII case, we noted the plaintiff "never argued that the various discriminatory acts alleged in her hostile work environment claim ... were further evidence of pretext" in her retaliation claim. Vickers, 493 F.3d at 196. The relevant forfeiture was legal, not factual. Vickers never argued a legal theory under which prior acts, by employees other than the official who fired her, could prove pretext. We rightly declined to apply those properly asserted facts to a legal argument Vickers had never articulated. The present case is different: The Parsons family has consistently argued a legal theory (whoever planted the bomb needed the guards' complicity) into which the allegedly forfeited fact (Qarmout planted the bomb) fits neatly.
6. As Judge Tatel points out, facts alleged at summary judgment by the moving party are treated as "admitted" unless controverted by the non-moving party. Tatel Op. at 136-37 (citing D.D.C. Local Civ. R. 7(h)(1)). This only illustrates the principle that a party cannot rely on facts it has failed to timely assert, and that a party is bound by its admissions. But once controverted, a fact is controverted for all purposes. By the same token, a fact asserted for one purpose is asserted for all purposes. It either happened or it did not happen. The rule of constructive admission offers no support to Judge Tatel's notion that a fact asserted in the context of one legal theory is forfeited as to another unless restated in the new context.
7. Judge Tatel faults the Parsons family's reply brief for not correcting the Palestinian Authority's misimpression that the PA report was the only evidence relevant to the conspiracy claim. Tatel Op. at 136-37. I agree the family could have been clearer, but its reply brief does demonstrate the PA's error by merging its treatment of material support and conspiracy into a single discussion about the sufficiency of the Qarmout evidence. Appellants' Reply Br. 9-12.
8. The Palestinian Authority does not mention that Kolstad and the Restatement also allow punitive damages against a principal who "acts recklessly in employing the malfeasing agent." See Kolstad, 527 U.S. at 543, 119 S.Ct. 2118.
9. See Petrochem Insulation, Inc. v. NLRB, 240 F.3d 26, 34 (D.C.Cir.2001) (deferring to the NLRB's citation of a "company's decision to seek treble damages as additional evidence of retaliatory motive" but noting that "had the suit not been so meritless — our view might be different" (citing Kline v. Coldwell Banker & Co., 508 F.2d 226, 235 (9th Cir.1974) (characterizing antitrust treble damages as punitive))); United States ex rel. Long v. SCS Bus. & Tech. Inst., Inc., 173 F.3d 870, 877 (D.C.Cir. 1999) (characterizing treble damages under the False Claims Act as "a form of punitive damages that would be palpably inconsistent with state liability"); Fleming v. FTC, 670 F.2d 311, 314-15 (D.C.Cir.1982) (concluding that a civil antitrust suit for treble damages constitutes an official law enforcement purpose under §§ 6(f) and 21(b)(6) of the Federal Trade Commission Improvements Act of 1980 because such suits are not only "remedial and compensatory in nature" but also "punitive or prophylactic"); see also PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 406-07, 123 S.Ct. 1531, 155 L.Ed.2d 578 (2003) (leaving for the arbitrator the question whether an arbitration agreement which precluded punitive damages also barred treble damages under RICO).
10. The ATA's legislative history confirms that the primary purpose of the statutory multiplier is to deter future acts of terrorism, not to punish the defendant's moral culpability. See Antiterrorism Act of 1990: Hearing on S. 2465 Before the Subcomm. on Courts and Administrative Practice of the S. Judiciary Comm., 101st Cong. 34 (1990) (statement of Steven R. Valentine, Deputy Assistant Att'y Gen., Civil Division) ("[The ATA] provides a federal forum for any national of the United States to seek compensation in the form of treble damages for injuries resulting from acts of international terrorism"); id. at 85 (statement of Joseph A. Morris, President and General Counsel of the Lincoln Legal Foundation) ("[B]y its provisions for compensatory damages, treble damages, and the imposition of liability at any point along the causal chain of terrorism, it would interrupt, or at least imperil, the flow of terrorism's lifeblood: money.").