651 F.3d 118 (D.C. Cir. 2011), 10-7085, Estate of Parsons v. Palestinian Authority

Docket Nº:10-7085.
Citation:651 F.3d 118
Opinion Judge:TATEL, Circuit Judge:
Party Name: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.
Attorney:Edward MacAllister argued the cause for appellants. With him on the briefs were Richard D. Heideman, Tracy Reichman Kalik, and Steven R. Perles. Laura G. Ferguson argued the cause for appellees. With her on the brief were Mark J. Rochon and Matthew T. Reinhard. Charles F. McAleer, Jr. and Timothy...
Judge Panel:Before: HENDERSON, TATEL, and BROWN, Circuit Judges. 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. KAREN LeCRAFT HENDERSON, Circui...
Case Date:August 05, 2011
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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651 F.3d 118 (D.C. Cir. 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.

August 5, 2011

Argued March 15, 2011.

Reissued Aug. 12, 2011.

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Appeal from the United States District Court for the District of Columbia (No. 1:07-cv-01847).

Edward MacAllister argued the cause for appellants. With him on the briefs were Richard D. Heideman, Tracy Reichman Kalik, and Steven R. Perles.

Laura G. Ferguson argued the cause for appellees. With her on the brief were Mark J. Rochon and Matthew T. Reinhard. Charles F. McAleer, Jr. and Timothy P. O'Toole entered appearances.

Before: HENDERSON, TATEL, and BROWN, Circuit Judges.

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.

OPINION

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

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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.

In the course of their investigations, the Palestinian Authority and the FBI conducted forensic analyses of the bomb that killed Parsons. Both determined, among other things, that the bomb contained urea nitrate. The Authority's analysis added that the bomb weighed approximately 30 to 40 kilograms and was detonated using cables. Moreover, a memo found in the Palestinian Authority's investigative file concludes, based on " [t]he lid of the device, the type of detonator, the cables used, the poorly connected batteries, the type of explosive material, [and] the outer casing of the device[,] ... that the structure of this device is the same structure used by the Popular Resistance Committees."

To this day, neither the Palestinian Authority nor Israel nor the United States has publicly identified the bomber. The reason, according to the Palestinian Authority, is that all three investigations remain open and the " identity of the individuals or group responsible for planning and carrying out the bombing has never been determined." Appellees' Br. 2. The Parsons family disputes whether the Palestinian Authority has indeed failed to identify those responsible for the attack.

Nearly four years after the bombing, Parsons's estate, his siblings, and his parents'

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estate filed this lawsuit in the U.S. District Court for the District of Columbia against the Palestinian Authority and the Palestinian Liberation Organization, alleging that each organization was at least partially responsible for the attack. Although the family's complaint raised several claims, at issue in this appeal are just two, both brought under the Anti-Terrorism Act of 1991 against the Palestinian Authority (but not the Palestinian Liberation Organization) for allegedly providing material support to and conspiring with the terrorist or terrorists who set and detonated the bomb. In support of these claims, the Parsons family advanced several theories for linking the Palestinian Authority to the attack, only three of which are relevant to this appeal: that Palestinian National Security forces at the nearby checkpoint agreed to look the other way while the bomb was planted; that Authority personnel tipped off the bomber about the convoy; and that the Authority provided weapons to the bomber.

Among the evidence the Parsons family offered to prove these theories, three documents, discovered in the Palestinian Authority's investigative file and that the parties and the district court have thus far treated as admissible, are central to this case. The first document (quoted above) is Qarmout's statement to Palestinian Authority interrogators in which Qarmout admits that he prepared to plant a bomb on Salahadeen Road in approximately the same location as the bomb that killed Parsons. In that statement, Qarmout also describes the three bombs he possessed in the month prior to this attack. The second piece of evidence (also referenced above) is the FBI's forensic report. Lastly, the family relied on a two-page memo having an unidentified author addressed to the " Director General of the Preventive Security Service," the significance of which the parties forcefully debate. In a section titled " Conclusion and personal interpretation of what happened according to the information in my possession," the memo includes several statements about the role Palestinian Authority employees played in the bombing including:

• " The explosive device was planted 20 meters away from the National Security checkpoint, a fact that indicates that those present in front of the checkpoint that day have previous knowledge of the presence of the device."

• " [A]fter information of the arrival of U.S. embassy staff was leaked, either by the National Security personnel at the checkpoint or by those who were accompanying the convoy, the person responsible for the explosion detonated the device."

The memo also includes several observations about the bomb, see supra at 120, as well as two statements about when the device was prepared and buried:

• " After examining the material used, we learned it had been prepared more than twenty days earlier and that a substantial portion of the nitric acid had been lost, separated from the urea, and reacted with the iron in the outer casing."

• " As we mentioned above, the device was present for 20 days at least...."

In addition, the Parsons family claimed they could prove that Amer Qarmout and/or the Popular Resistance Committees directly carried out the attack. Moreover, the family insisted that even if they were unable to identify the actual bomber, they could nonetheless prevail so long as they could show what role the Palestinian Authority had played.

The district court, focusing on the three items of evidence, granted the Palestinian Authority's motion for summary judgment. The court first held that plaintiffs advancing

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material support claims under the Anti-Terrorism Act must identify " what terrorist organization or individual carried out the attack." Estate of Parsons v. Palestinian Auth., 715 F.Supp.2d 27, 31 (D.D.C.2010). Concluding that no reasonable juror could find, based on the family's admissible evidence, that Qarmout, the PRC, or any other specific terrorist or terrorist organization was directly responsible for the bomb, the court rejected the...

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