Keren Kayemeth Leisrael - Jewish National Fund v. Education for a Just Peace in the Middle East ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 12, 2023 Decided May 2, 2023
No. 21-7097
KEREN KAYEMETH LEISRAEL - JEWISH NATIONAL FUND, ET
AL.,
APPELLANTS
v.
EDUCATION FOR A JUST PEACE IN THE MIDDLE EAST, DOING
BUSINESS AS US CAMPAIGN FOR PALESTINIAN RIGHTS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-03425)
Nathan Lewin argued the cause for appellants. With him
on the briefs were Tracy Reichman Kalik and Alyza D. Lewin.
Diala Shamas argued the cause for appellee. With her on
the brief were Maria C. LaHood, Shayana D. Kadidal, Judith
Brown Chomsky, and David P. Helwig.
Before: PILLARD and PAN, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PAN.
2
PAN, Circuit Judge: Appellants are victims of terrorist
attacks allegedly perpetrated by the Islamic Resistance
Movement, colloquially known as “Hamas.” Appellants assert
that Hamas and affiliated groups are responsible for launching
incendiary devices from the Gaza Strip into areas of Israel
where appellants live and own property, causing substantial
damage and emotional harm. They sued an American non-
profit corporation — Education for a Just Peace in the Middle
East, doing business as the U.S. Campaign for Palestinian
Rights (“USCPR”) — under the Anti-Terrorism Act (“ATA”),
alleging that USCPR aided and abetted and provided material
support to Hamas. The district court dismissed the Complaint,
holding that appellants failed to allege sufficient links between
Hamas and USCPR to hold USCPR liable for any acts of
terrorism. We agree and affirm.
BACKGROUND
Appellants are three American families that live in the
Gaza Envelope — the Israeli land surrounding the Gaza Strip.
They have homes in Sderot and Netivot, two communities in
the Gaza Envelope. The Complaint alleges that these families
have suffered from a “constant threat of attacks” from
incendiary balloons and kites launched from the Gaza Strip.
Compl. ¶ 171. The incendiary devices have burned forests,
destroyed scenic trails, ruined crops, caused blackouts, and led
Israeli inhabitants of the Gaza Envelope to live in a state of
terror. The appellant families allege that they have endured
property damage, emotional distress, and other harm from the
incendiary devices. They assert that Hamas perpetrated the
attacks; and they brought ATA claims against USCPR for
allegedly supporting Hamas.
The Complaint also alleges common-law conspiracy
claims for trespass, destruction of property, public nuisance,
3
and tortious interference on behalf of Keren Kayemeth
LeIsrael-Jewish National Fund (“KKL-JNF”), an Israeli
company dedicated to purchasing land in Israel for settlement
and afforestation. KKL-JNF claims “tens of millions of dollars
in damage” to its property in the Gaza Envelope, all caused by
incendiary devices allegedly launched by Hamas. Compl.
¶¶ 109, 157–60, 237–71. KKL-JNF did not — and as an Israeli
company, could not — bring ATA claims. See Compl. ¶¶ 7,
198, 212, 226; 18 U.S.C. § 2333(a) (allowing suit by “[a]ny
national of the United States”). Although KKL-JNF is listed
as the lead appellant in this case, the briefs discuss only the
ATA claims.
Appellee USCPR is a U.S.-based non-profit corporation.
USCPR allegedly provides material support and fiscal
sponsorship to the Boycott National Committee, which was
formed in 2005 to coordinate the efforts of various Palestinian
political parties, unions, associations, and other organizations
to “boycott[] Israel . . . economically, academically[,] and
diplomatically.” Compl. ¶¶ 70, 73, 76. The Boycott National
Committee calls itself the “broadest coalition in Palestinian
civil society that leads the global [boycott, divestment, and
sanctions] movement for Palestinian rights”; it brings together
“Palestinian civil society activists and pro-Palestinian activists
abroad” to promote “boycott as a central form of civil
resistance.” Compl. ¶¶ 74, 76, 124. One Boycott National
Committee member has stated that USCPR is the Boycott
National Committee’s “most important strategic ally and
partner in the U.S.” Compl. ¶ 130.
Appellants allege that Hamas is responsible for the
incendiary attacks in the Gaza Envelope, and that Hamas is part
of a vast conspiracy against Israel that also includes the Boycott
National Committee. Since 1997, Hamas has been designated
a “foreign terrorist organization.” Compl. ¶ 62; Designation of
4
Foreign Terrorist Organizations, 62 Fed. Reg. 52,650 (Oct. 8,
1997). Hamas took control of the Gaza Strip in 2007, where it
maintains authority to this day. Compl. ¶¶ 42–43. The
Complaint alleges that the Sons of al-Zawari,1 “Palestinian
youths,” or “H[amas] and/or others” have attacked the Gaza
Envelope by launching incendiary devices from the Gaza Strip.
Compl. ¶¶ 9–21, 52, 54, 100, 108, 157–58. The incendiary
devices include kites and balloons equipped with flammable
materials and means of igniting. Id. Hamas allegedly directs
funds collected for ostensibly charitable or humanitarian
purposes into financing these launches. Compl. ¶ 57.
Appellants contend that Hamas also sponsors and supports
protests known as the “Great Return March,” during which
incendiary kites and balloons are flown into Israeli
communities in the Gaza Envelope. Compl. ¶ 87. Because
“[t]here is little to nothing that happens in Gaza that H[amas]
does not know about, approve[,] and support,” appellants
blame Hamas for the incendiary attacks. Compl. ¶¶ 48, 107.
Appellants contend that Hamas is connected to the Boycott
National Committee and the Palestinian National and Islamic
Forces (“PNIF”), describing the latter as a “coordinating
framework” for various Palestinian groups, “including five
designated terrorist organizations.” Compl. ¶ 66. In
appellants’ telling, the PNIF seeks “to lead and coordinate
terrorist activities.” Id. According to the Complaint, Hamas
1
The Sons of al-Zawari “frequently take credit” for launching
incendiary devices, post pictures and videos online of their exploits,
and depict Palestinian flags alongside incendiary devices. Compl.
¶ 102. Appellants assert that the Sons of al-Zawari “are part of
H[amas],” and that Hamas and the PNIF have supported the Sons of
al-Zawari by hosting funeral ceremonies for its members and by
posting photos and videos of the group’s incendiary launches on
Facebook. Compl. ¶¶ 101, 103–05.
5
claims membership in both the PNIF and the Boycott National
Committee. Compl. ¶¶ 24, 66. Moreover, a PNIF
representative sits on the Boycott National Committee, and the
two groups share personnel. Compl. ¶ 80.
The Complaint alleges that the PNIF and the Boycott
National Committee “are intertwined and unified in their
commitment to terrorize and demonize Israel.” Compl. ¶ 80.
Appellants assert that the PNIF was the first coalition involved
with the Boycott National Committee, first “propelled the
boycott strategy,” and has lent the Boycott National Committee
power based on the PNIF’s “representation of all the political[,]
national[,] and Islamic factions.” Compl. ¶ 78. Appellants
contend that the “real purpose” of the Boycott National
Committee and the boycott movement writ large “is the
elimination of Israel as a sovereign nation-state.” Compl. ¶ 76.
Appellants seek to hold USCPR directly and indirectly
liable under the ATA for the emotional and other harms
inflicted by the incendiary attacks that appellants attribute to
Hamas. Because Hamas is a member of both the Boycott
National Committee and the PNIF, see Compl. ¶¶ 24, 66, 202,
and USCPR allegedly aided Hamas “through the [Boycott
National Committee] and otherwise,” see Compl. ¶¶ 218, 233,
appellants claim that USCPR should be held accountable for its
contributions to the activities of the alleged terror network. At
oral argument, appellants clarified their theory of liability,
stating that they view the Boycott National Committee as “a
direct front for Hamas.” See Oral Arg. Tr. 5:16–17. Appellants
contend that “[b]y giving [money] to the [Boycott National
Committee], [USCPR is] giving money to Hamas.” Id. at
5:11–17.
The district court granted USCPR’s motion to dismiss the
ATA counts for failure to state a claim. See Keren Kayemeth
6
LeIsrael–Jewish Nat’l Fund v. Educ. for a Just Peace, 530 F.
Supp. 3d 8, 15 (D.D.C. 2021). It dismissed appellants’ claims
alleging direct liability under the ATA for lack of proximate
cause. Id. at 12. Although appellants included allegations
about USCPR’s “financial and other support of the [Boycott
National Committee],” they offered only “conclusory
assertions that [USCPR] directly financed or supported
Hamas” and thereby caused injury to appellants. Id. at 13. The
district court also dismissed appellants’ aiding-and-abetting
claims, holding that the Complaint lacked concrete, factual
allegations that Hamas or the Boycott National Committee
planned or authorized any attacks that injured appellants. Id.at 13–15. Finally, the district court dismissed KKL-JNF’s
common-law claims for lack of supplemental jurisdiction.
Appellants filed a motion for reconsideration, which the district
court denied. This appeal followed.
STANDARD OF REVIEW
We review a district court’s dismissal of a complaint for
failure to state a claim de novo. Atchley v. AstraZeneca UK
Ltd., 22 F.4th 204, 214 (D.C. Cir. 2022). In doing so, we
assume appellants’ factual allegations to be true and draw all
reasonable inferences in their favor. Id. Appellants’ claims
must rise “above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “A claim cannot survive
a motion to dismiss if based on inferences ‘unsupported by
facts’ or legal conclusions disguised as factual allegations.”
Bernhardt v. Islamic Republic of Iran, 47 F.4th 856, 866 (D.C.
Cir. 2022) (quoting Owens v. BNP Paribas, S.A., 897 F.3d 266,
272 (D.C. Cir. 2018)). Rather, “[a] complaint can establish a
facially plausible claim only if it sets forth ‘factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’” Owens, 897
7
F.3d at 272 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
ANALYSIS
Appellants brought suit against USCPR under the ATA, a
statute that grants United States nationals a private cause of
action to recover damages for injuries sustained in terrorist
attacks. 18 U.S.C. § 2333(a), (d); see also Atchley, 22 F.4th at
214. Direct liability under the ATA attaches when a United
States national is “injured in his or her person, property, or
business by reason of an act of international terrorism.”
18 U.S.C. § 2333(a). Aiding-and-abetting liability applies to
anyone “who aids and abets, by knowingly providing
substantial assistance, or who conspires with” a designated
foreign terrorist organization that commits “an act of
international terrorism.” Id. § 2333(d).
To support a theory of direct liability, appellants contend
that USCPR’s donation of funds to the Boycott National
Committee, which it equates to Hamas, was an “act of
international terrorism.” See id. § 2333(a); Compl. ¶¶ 212–16,
226–32. For indirect liability, appellants assert that USCPR
aided and abetted the launching of incendiary devices by
Hamas when USCPR provided funds to the Boycott National
Committee. See Compl. ¶¶ 201–04. Because the Complaint
fails to sufficiently connect USCPR to any acts of terrorism,
the district court correctly ruled that appellants fail to state a
claim.
I. Direct Liability
Direct liability under the ATA requires proof that (1) a
U.S. national suffered an injury; (2) the defendant committed
“an act of international terrorism”; and (3) the injury was
8
proximately caused by terrorism — i.e., there must be “some
causal connection” showing that the injury occurred “by reason
of” the act of international terrorism. Owens, 897 F.3d at 270;
see 18 U.S.C. § 2333(a). For an act to qualify as “international
terrorism,” it must (A) “involve violent acts or acts dangerous
to human life” that “are . . . or that would be a criminal
violation if committed within the jurisdiction of the United
States or of any State”; (B) “appear to be intended” “to
intimidate or coerce a civilian population” or to influence or
affect a government by intimidation, coercion, or violence; and
(C) occur outside the United States’ territorial jurisdiction or
“transcend national boundaries.” 18 U.S.C. § 2331(1)(A)–(C).
Appellants’ claim of direct liability relies on the
contention that USCPR’s donations to the Boycott National
Committee are, in fact, donations to Hamas. See Oral Arg. Tr.
4:15–5:20. Appellants argue that this case is like Boim v. Holy
Land Foundation for Relief & Development, in which the
Seventh Circuit held that providing direct financial aid to
terrorists can be an act of international terrorism within the
meaning of the ATA. 549 F.3d 685, 690–91, 694 (7th Cir.
2008) (en banc) (holding that fund transfers to Hamas, which
has tried “to kill or wound” others, endangered human life
under 18 U.S.C. § 2331(1)(A)). Appellants urge us to “declare
[Boim] to be the rule in this Circuit.” Appellant Br. 9. We have
not yet decided whether fiscal sponsorship of a terrorist group
can qualify as “an act of international terrorism” for purposes
of the ATA, which defines “international terrorism” as limited
to “violent acts or acts dangerous to human life.” 18 U.S.C.
§ 2331(1)(A); see Atchley, 22 F.4th at 238 (leaving this issue
for the district court to address in the first instance on remand).
Boim declared that “[g]iving money to Hamas, like giving a
loaded gun to a child . . . , is an act dangerous to human life.”
Boim, 549 F.3d at 690 (internal quotation marks omitted). But
the Second Circuit has reasoned that “providing financial
9
services to a known terrorist organization may afford material
support to the organization even if the services do not involve
violence or endanger life,” and that such support thus does not
necessarily “equate to an act of international terrorism.” See
Linde v. Arab Bank, PLC, 882 F.3d 314, 326 (2d Cir. 2018).
We need not take a position on whether mere financial support
can be viewed as an act of international terrorism because even
if we assume that Boim’s theory of liability is available to
appellants, they fail to plausibly allege facts that support their
claim. At bottom, the instant Complaint does not adequately
plead that USCPR provided money to Hamas.
The linchpin of appellants’ claim of direct liability is their
bold assertion that the Boycott National Committee is a “direct
front” for Hamas — i.e., that USCPR’s donations to the
Boycott National Committee are donations to Hamas.
According to the Complaint, the Boycott National Committee
is the “broadest coalition in Palestinian civil society that leads
the global [boycott, divestment, and sanctions] movement for
Palestinian rights;” the Committee connects with “Palestinian
civil society activists and pro-Palestinian activists abroad” to
promote “boycott as a central form of civil resistance.” Compl.
¶¶ 74, 76, 124. To link USCPR to Hamas through the Boycott
National Committee, the Complaint asserts that: (1) Hamas is
one of the many members that comprise the Boycott National
Committee and the PNIF, id. ¶¶ 24, 66; (2) the PNIF and the
Boycott National Committee are “intertwined and unified,” id.
¶ 80; (3) the PNIF has a representative on the Boycott National
Committee, id.; (4) the PNIF and the Boycott National
Committee share personnel, id.; (5) Hamas agents have served
as PNIF representatives, id. ¶¶ 81–83; and (6) the PNIF,
Hamas, and the Boycott National Committee have been
involved in sponsoring and supporting the Great Return March
protests, id. ¶¶ 87, 88, 112–16. Notably, the Complaint
contains no allegations about the nature and extent of USCPR’s
10
donations to the Boycott National Committee, how the Boycott
National Committee spends its funds, or how donations to the
Boycott National Committee are funneled to the PNIF or
Hamas. As a result, appellants’ conclusory allegations amount
to nothing more than guilt by association: The web of
connections alleged in the Complaint falls far short of
establishing that the Boycott National Committee is an
extension of Hamas or has been taken over by Hamas. Thus,
appellants fail to lend factual support to their claim that USCPR
provided money to Hamas.
The Complaint also insufficiently alleges that USCPR’s
actions proximately caused appellants’ injuries. To establish
proximate cause, appellants must allege that USCPR’s actions
were a substantial factor in, and had the reasonably foreseeable
effect of, causing appellants’ harm. Atchley, 22 F.4th at 226.
But even if we assume that Hamas and the Boycott National
Committee are conjoined, appellants do not allege that the
money provided to the Boycott National Committee by USCPR
funded incendiary attacks. Indeed, the Complaint does not
even adequately allege that Hamas launched the incendiary
kites and balloons that terrorized appellants. Appellants
attribute those attacks to the Sons of al-Zawari, “Palestinian
youths,” or “H[amas] and/or others.” Compl. ¶¶ 9–21, 52, 100.
Because the Great Return March protests “are conducted in
H[amas] controlled Gaza,” appellants claim that any activities
at those protests, “including the launching of incendiary terror
balloons and kites, cannot occur without the express support,
permission, consent[,] and control of H[amas].” Compl.
¶ 107.2 But we cannot reasonably infer that Hamas controls
2
Appellants allege that the Sons of al-Zawari are “part of
H[amas].” Compl. ¶ 103. They base this assertion on the group’s
name — which pays tribute to Mohammad al-Zawari, an engineer
who built and operated drones for Hamas and Hezbollah — and from
Facebook posts showing Hamas’s al-Qassam Brigade holding a
11
every act that takes place at the Great Return March protests
merely because it administers the Gaza Strip. Even viewing
the Complaint in the light most favorable to appellants, it is far
from clear who was responsible for the alleged acts of
terrorism. See Compl. ¶¶ 9–21, 52, 100. The Complaint thus
fails to plead that Hamas was responsible for the incendiary
attacks and that USCPR’s funding of Hamas proximately
caused appellants’ injuries.
Appellants argue that it is “impossible” for victims of
terrorism to plead more specific facts because necessary details
— such as the amount of money that USCPR has sent to
Hamas — are “hidden” and can be uncovered only during
discovery. Reply Br. 2, 6–8. It is true that “[t]errorist
attacks . . . often elude the conventional judicial system”
because they involve “amorphous” actors who are “difficult to
hale into court.” Kemper v. Deutsche Bank AG, 911 F.3d 383,
386 (7th Cir. 2018); cf. Kilburn v. Socialist People’s Libyan
Arab Jamahiriya, 376 F.3d 1123, 1129 (D.C. Cir. 2004)
(observing that material support of state-sponsored terrorist
attacks “is difficult to trace”). But a complaint must allege
“enough fact[s] to raise a reasonable expectation that discovery
will reveal evidence” supporting the plaintiff’s claims.
Twombly, 550 U.S. at 556. That pleading requirement is not
“impossible” to meet in terrorism cases, as evidenced by the
complaint we deemed sufficient in Atchley. See 22 F.4th at 228
(complaint detailed Jaysh al-Mahdi’s control over Iraqi
Ministry, relying on multiple reports by “people on the ground
in Iraq”). Simply put, the factual allegations in the instant
Complaint “have not nudged [appellants’] claims across the
line from conceivable to plausible.” Twombly, 550 U.S. at 570.
memorial ceremony for a member of the Sons of al-Zawari. Id.
¶¶ 101, 103–05. Those allegations are insufficient to support an
inference that Hamas controls the Sons of al-Zawari.
12
To survive a motion to dismiss, a complaint must “allow[]
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged,” which requires “more than
the mere possibility of misconduct.” Iqbal, 556 U.S. at 678–
79. But appellants’ factual allegations fail to support their
assertion that the Boycott National Committee is a front for
Hamas, and that USCPR is directly liable for perpetrating
international terrorism by donating money to the Boycott
National Committee. To the extent that appellants claim that
the Boycott National Committee is independently linked to the
incendiary attacks, that claim similarly fails: Appellants
insufficiently allege that USCPR’s financial aid led to the
incendiary attacks, thereby proximately causing appellants’
injuries.
II. Aiding-and-Abetting Liability
As an alternative to their direct-liability claim, appellants
contend that USCPR aided and abetted Hamas’s launch of
incendiary devices by providing funds to Hamas through the
Boycott National Committee. Compl. ¶¶ 202–10. The Justice
Against Sponsors of Terrorism Act (“JASTA”) amended the
ATA to expressly permit victims of acts of international
terrorism committed, planned, or authorized by a foreign
terrorist organization to sue anyone “who aids and abets, by
knowingly providing substantial assistance, or who conspires
with” the terrorist organization. 18 U.S.C. § 2333(d). JASTA
codifies the aiding-and-abetting standard from Halberstam v.
Welch, 705 F.2d 472 (D.C. Cir. 1983), which includes three
elements: “(1) the party whom the defendant aids must perform
a wrongful act that causes an injury; (2) the defendant must be
generally aware of his role as part of an overall illegal or
tortious activity at the time that he provides the assistance;
[and] (3) the defendant must knowingly and substantially assist
13
the principal violation.” Atchley, 22 F.4th at 220; see JASTA
§ 2(a)(5), Pub. L. No. 114-222, 130 Stat. 852, 852 (Sept. 28,
2016).
Appellants’ attempt to establish aiding-and-abetting
liability fails at every turn. First, although appellants claim that
USCPR aided and abetted Hamas, appellants do not adequately
allege that Hamas “perform[ed] a wrongful act that cause[d] an
injury.” See Atchley, 22 F.4th at 220. As discussed, appellants
assign responsibility for the incendiary attacks to the Sons of
al-Zawari, “Palestinian youths,” or “H[amas] and/or others.”
Compl. ¶¶ 9–21, 52, 100. Appellants’ uncertainty about who
perpetrated the incendiary attacks is fatal to their ability to
plead that USCPR aided and abetted those attacks.
Second, there are no facts from which we can infer that
USCPR was “generally aware” that its role of providing funds
to the Boycott National Committee was “part of an overall
illegal or tortious activity.” See Atchley, 22 F.4th at 220. The
Boycott National Committee was formed to coordinate
boycott, divestment, and sanctions activity as a form of civil
resistance. Compl. ¶¶ 71–76. Appellants’ assertion that such
activities are “another form of terror in [the] quest to remove
Israel as a sovereign state,” Compl. ¶ 78, is insufficient to
support USCPR’s liability: Advocating and coordinating a
boycott of Israel — “economically, academically[,] and
diplomatically,” Compl. ¶ 70 — is not unlawful. Although
appellants allege that the Boycott National Committee “knows
that the incendiary terror balloons and kites are launched
during [the Great Return March protests],” and nevertheless
“promot[es] and support[s] the [Great Return March],” Compl.
¶ 119, that alone is not enough to support a finding that USCPR
was aware that its donations to the Boycott National
Committee were used unlawfully, given that the Boycott
National Committee also engages in lawful civil resistance. At
14
most, the Complaint alleges that an Executive Director at
USCPR tweeted that an “infinitesimal percentage” of the
population in Gaza flew incendiary kites and balloons. Compl.
¶ 134. But a single executive’s awareness of a rare event is
insufficient to impute to the organization a general awareness
of the predictable occurrence of such an event. See Bernhardt,
47 F.4th at 869. And because the tweet made no reference to
Hamas or the Boycott National Committee, it does not support
an inference that USCPR knew that it might play a role in
illegal activity by providing funds to the Boycott National
Committee. Appellants thus fail to allege specific facts that
demonstrate USCPR’s general awareness of its own role in
illegal activity.
Finally, we discern no non-conclusory factual allegations
that USCPR “knowingly and substantially assist[ed]” any
incendiary launches. See Atchley, 22 F.4th at 220. Appellants
fail to allege that the funds that USCPR provided to the Boycott
National Committee were used to finance any terrorist attacks,
much less that USCPR was aware that it was happening. And
as we have discussed, the Complaint does not even allege that
the Boycott National Committee provided funds to Hamas. 3
3
We generally apply six factors enumerated in Halberstam to
evaluate knowing and substantial assistance: “(i) the nature of the act
assisted, (ii) the amount and kind of assistance, (iii) the defendants’
presence at the time of the tort, (iv) the defendants’ relationship to
the tortious actor, (v) the defendants’ state of mind, and (vi) the
duration of assistance.” Atchley, 22 F.4th at 221 (citing Halberstam,
705 F.2d at 483–84). We find it unnecessary to discuss those factors
here because appellants’ factual allegations are so clearly deficient.
Although the Supreme Court is considering the scope of the
substantial-assistance standard in a pending case, see Twitter, Inc. v.
Taamneh, No. 21-1496 (U.S. argued Feb. 22, 2023), our ruling here
does not depend on that case’s outcome because, as discussed,
15
We note that appellants’ allegations are far less convincing
than those we have evaluated in prior cases. In Atchley, we
held that the plaintiffs sufficiently pleaded aiding-and-abetting
liability where the defendant companies provided free goods
and cash bribes worth millions of dollars per year to secure
business opportunities with the Iraqi Ministry of Health.
Atchley, 22 F.4th at 210, 221, 225. Defendants did so with
knowledge that the Ministry during that period “was engaged
in anti-American acts of terrorism” that killed or maimed the
plaintiffs or their family members — acts allegedly planned
and authorized by Hezbollah, a designated foreign terrorist
organization. Id. at 209–10, 221. The plaintiffs alleged that
the Ministry was “openly controlled” by “[t]he known terrorist
group Jaysh al-Mahdi,” such that its headquarters bore “Death
to America” slogans on the walls and Jaysh al-Mahdi fighters
“freely roamed” the hallways. Id. at 209, 212, 221. They
alleged that the defendants’ agents visited the Ministry when it
was manifestly under Jaysh al-Mahdi’s control, and that
defendants’ corporate leadership in the United States also
“would have become aware of frequent mainstream media
reports describing Sadr’s control of the Ministry and use of that
position for support of terrorist attacks against Americans.” Id.
at 213; see id. at 221. Their allegations sufficed to plead the
companies’ general awareness of overall illegal activity by a
Ministry under the direct control of Jaysh al-Mahdi, and the
companies’ knowing provision of substantial assistance to
Jaysh al-Mahdi’s acts of international terrorism. See id. at 221,
224. By contrast, the instant Complaint fails to allege
USCPR’s general awareness that its support of the Boycott
National Committee played any role in launches of incendiary
kites and balloons in Gaza near the Israeli border.
appellants fail to sufficiently plead any of the three required elements
of an aiding-and-abetting claim.
16
In Bernhardt, we held that an American bank that merely
transacted business with Al Rajhi Bank — a bank affiliated
with al-Qaeda — could not be liable for aiding and abetting al-
Qaeda. Bernhardt, 47 F.4th at 868–69. We found it significant
that Al Rajhi Bank had “extensive legitimate operations,” and
no allegations established that it and al-Qaeda were “closely
intertwined.” Id. at 869. Like Al Rajhi Bank, the Boycott
National Committee has extensive legitimate operations, and
the allegations in the Complaint do not establish that it is
closely intertwined with a terrorist group. The Boycott
National Committee engages in lawful advocacy to promote
the boycott, divestment, and sanctions movement against
Israel. At most, the Boycott National Committee includes
Hamas and PNIF among its many members; and it allegedly is
aware that Hamas and other affiliates engage in terrorist
activities. See Compl. ¶¶ 74, 76, 124. Those allegations are
much weaker than those in Bernhardt: While Al Rajhi Bank
provided banking services to al-Qaeda, the Complaint does not
allege that the Boycott National Committee provided any funds
to Hamas. Accordingly, our precedents clearly support the
dismissal of appellants’ Complaint.
CONCLUSION
For the foregoing reasons, we conclude that the district
court properly dismissed appellants’ direct-liability and aiding-
and-abetting claims under the ATA. The Complaint does not
adequately plead that USCPR provided funds to Hamas or
otherwise aided or abetted Hamas. We therefore affirm the
judgment of the district court.
So ordered.