James Owens v. BNP Paribas, S.A. ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2017 Decided July 27, 2018
No. 17-7037
JAMES OWENS, ET AL.,
APPELLANTS
v.
BNP PARIBAS, S.A., ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01945)
John Vail argued the cause for appellants. With him on the
briefs were Thomas F. Fay and Jane C. Norman.
Jeffrey R. White was on the brief for amicus curiae
American Association for Justice in support of appellants.
Lawrence B. Friedman argued the cause for appellees.
With him on the brief were Jonathan I. Blackman and Alexis
Collins.
David D. DiBari and Stephen M. Nickelsburg were on the
brief for amicus curiae Institute of International Bankers in
support of appellees.
2
Before: GRIFFITH and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: In 1998, al Qaeda detonated
truck bombs outside the U.S. embassies in Nairobi, Kenya, and
Dar es Salaam, Tanzania, killing over two hundred people and
injuring several thousand more. Victims of these attacks sued
the French bank BNP Paribas for damages under the Anti-
Terrorism Act (ATA), alleging the bank provided financial
assistance to Sudan, which in turn funded and otherwise
supported al Qaeda’s attack. Because the victims fail to
plausibly allege BNP Paribas caused their injuries, and because
the ATA does not permit recovery for claims premised on
aiding and abetting liability, the district court dismissed the suit
for failure to state a claim. We affirm.
I
A
On August 7, 1998, truck bombs exploded outside the U.S.
embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania. At
least twelve of the more than two hundred deaths and many of
the 4,000 injured individuals were U.S. nationals. See Owens
v. Republic of Sudan, 412 F. Supp. 2d 99, 102 (D.D.C. 2006).
Osama bin Laden and al Qaeda claimed responsibility. The
embassy bombings served as a prelude to subsequent al Qaeda
attacks against the United States, culminating in the atrocities
of September 11, 2001.
But al Qaeda didn’t act alone. The Republic of Sudan and
the Islamic Republic of Iran helped facilitate the embassy
bombings in several ways. For its part, Sudan provided safe
3
harbor for al Qaeda’s operational and logistical supply
network, as well as critical financial, military, and intelligence
services. See Owens v. Republic of Sudan, 826 F. Supp. 2d 128,
139-46 (D.D.C. 2011). In the early 1990s, Sudan invited al
Qaeda to relocate from Afghanistan and promised the
government’s support. Am. Compl. ¶ 104. Al Qaeda accepted
the invitation and moved its operations to Sudan, purchasing
real estate and agreeing to supply the Sudanese government
with communications equipment, weapons, and labor for
making chemical weapons. Id. In return, the Sudanese
government provided al Qaeda with airplanes to bring their
missiles from Afghanistan to Sudan, security, intelligence-
gathering services, travel documents, economic aid, and
uranium. Id.In response to Sudan’s growing ties to terrorist
organizations, the U.S. Secretary of State designated the
country as a state sponsor of terrorism in 1993. Id. ¶¶ 47, 61.
The Secretary noted that the Sudanese government harbored
international terrorists, maintained close ties to Iran, and
provided meeting locations, transit points, and safe havens for
various radical extremist groups. Id. ¶ 61. The United States
thereafter placed sanctions on Sudan, restricting U.S. foreign
assistance to its government, banning defense exports and
sales, and imposing various financial constraints. Id. ¶ 62.
By the late 1990s, the United States placed even greater
restrictions on trade with Sudan. In 1997, President Clinton
issued an executive order imposing a complete trade embargo
that prohibited the exportation of all goods and services—
including financial services—to Sudan unless the exporter
received a license from the Office of Foreign Assets Control
(OFAC). Id. ¶¶ 63-65. And in 1998, OFAC designated all of
Sudan’s national and major commercial banks as “Specially
Designated Nationals,” id. ¶¶ 67-68, subjecting them to even
4
more onerous trade restrictions and sanctions, see 31 C.F.R.
§ 515.306.
BNP Paribas, S.A. (BNPP), the largest bank in France,
sought to evade U.S. sanctions on Sudan applicable to
international institutions. Am. Compl. ¶¶ 30, 73. In 2014,
BNPP admitted as much when it pleaded guilty in federal court
to illegally conspiring with banks and other entities to evade
the sanctions regime and unlawfully move nearly $9 billion
through the U.S. financial system. Id. ¶ 73; see also id. ¶¶ 7-8,
95, 105-07, 109-15, 126-27; Statement of Facts, United States
v. BNP Paribas, S.A., No. 1:14-cr-00460 (S.D.N.Y. May 1,
2015), J.A. 90-125.
At least $6 billion of these illegally processed funds
involved Sudanese banks and financial institutions. Statement
of Facts ¶ 17, J.A. 95. BNPP pleaded guilty to circumventing
sanctions on Sudan only from 2002 to 2007, well after the
embassy bombings. Am. Compl. ¶ 76; see also Statement of
Facts ¶ 17, J.A. 95. However, in support of its guilty plea,
BNPP stipulated that by 1997 one of its subsidiaries had
become the “correspondent bank” in Europe for a Sudanese
government bank and all the major commercial banks in Sudan.
Am. Compl. ¶ 82 (quoting Statement of Facts ¶ 19, J.A. 96-97).
This meant that almost every Sudanese bank began to keep
U.S. dollar accounts with BNPP. Id. (quoting Statement of
Facts ¶ 19, J.A. 96-97). Moreover, BNPP admitted that it used
various “satellite banks” outside the United States to facilitate
U.S. dollar payments for Sudanese banks and evade the U.S.
sanctions. Id. ¶¶ 87-88, 90-91 (quoting Statement of Facts ¶ 23-
24, J.A. 99-100). Between 2002 and 2007, BNPP used this
satellite-bank structure to process “thousands of U.S. dollar
transactions, worth billions of dollars” for sanctioned Sudanese
banks. Id. ¶ 92 (quoting Statement of Facts ¶ 24, J.A. 99-100).
5
B
The ATA creates a private cause of action for those
harmed by international terrorism. Specifically, the ATA
provides that “[a]ny national of the United States injured in his
or her person . . . by reason of an act of international terrorism
. . . may sue therefor . . . and shall recover threefold . . .
damages.” 18 U.S.C. § 2333(a). Therefore, on its face, the ATA
has three essential elements. First, a U.S. national must have
suffered an injury. Second, there must have been an act of
international terrorism.1 And third, the U.S. national’s injury
must have occurred “by reason of” the act of international
terrorism. That is, there must be some causal connection
between the act of international terrorism and the U.S.
national’s injury.2
1
An activity must meet three criteria to qualify as
“international terrorism.” First, the activity must “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) (1996). Second, the
activity must appear to be intended to “intimidate or coerce a civilian
population”; “influence the policy of a government by intimidation
or coercion”; or “affect the conduct of a government by assassination
or kidnapping.” Id. § 2331(1)(B)(i)-(iii). Third, the activity must
“occur primarily outside the territorial jurisdiction of the United
States, or transcend national boundaries in terms of the means by
which they are accomplished, the persons they appear intended to
intimidate or coerce, or the locale in which their perpetrators operate
or seek asylum.” Id. § 2331(1)(C).
2
Because treble damages usually have a punitive aim, several
courts have also interpreted § 2333 to require that a defendant act
with some scienter above negligence, independent of any scienter
required to commit the predicate act of international terrorism. See
6
Plaintiffs are U.S. nationals injured in the 1998 embassy
bombings, or the estates, heirs, or survivors of U.S. nationals
who died or were severely injured in the bombings. See Am.
Compl. ¶¶ 22-26. They previously sued Sudan under the
Foreign Sovereign Immunities Act, alleging that Sudan offered
material support to al Qaeda’s bombing of the embassies, and
in 2011 received default judgments against the country. Id.
¶¶ 24, 27.
Several months after BNPP’s 2014 federal plea, Plaintiffs
filed their present complaint in district court. 3 Based on
BNPP’s stipulations in its guilty plea, Plaintiffs allege the bank
provided material support to al Qaeda by processing financial
transactions for Sudanese banks, converting Sudanese
resources into U.S. banknotes, and circumventing U.S.
sanctions on Sudan. Id. ¶¶ 6-8. Those Sudanese banks then sent
that U.S. currency to al Qaeda, which used the funds to commit
the embassy bombings. See id. ¶ 118.
On appeal, Plaintiffs claim BNPP’s role in processing
financial transactions for Sudanese banks violated two federal
laws prohibiting the provision of material aid and support to
Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 692-93
(7th Cir. 2008) (en banc); see also Sokolow v. Palestine Liberation
Org., 60 F. Supp. 3d 509, 515 (S.D.N.Y. 2014); Gill v. Arab Bank,
PLC, 893 F. Supp. 2d 474, 503 (E.D.N.Y. 2012); Wultz v. Islamic
Republic of Iran, 755 F. Supp. 2d 1, 42 (D.D.C. 2010). Whether this
is right has no bearing on this appeal.
3
Plaintiffs also sued two of BNPP’s wholly owned
subsidiaries, BNP North America, Inc. and BNP Paribas (Suisse)
S.A. See Am. Compl. ¶¶ 2, 29-40. We refer to these entities
collectively as “BNPP.”
7
terrorists and terrorist groups, see id. ¶¶ 116-20, 4 both of
which may constitute acts of international terrorism under the
ATA, see, e.g., Linde v. Arab Bank, PLC, 882 F.3d 314, 325-
26 (2d Cir. 2018); Boim v. Quranic Literacy Inst. (“Boim I”),
291 F.3d 1000, 1015 (7th Cir. 2002), overruled sub nom. Boim
v. Holy Land Found. for Relief & Dev. (“Boim III”), 549 F.3d
685 (7th Cir. 2008) (en banc).5 First, Plaintiffs claim BNPP
“provide[d] material support or resources [to terrorists] . . .
knowing or intending that they are to be used in preparation
for, or in carrying out, a violation of” certain enumerated
criminal laws. 18 U.S.C. § 2339A(a). Second, Plaintiffs claim
BNPP “knowingly provide[d] material support or resources to
a foreign terrorist organization.” Id. § 2339B(a)(1).6
4
Plaintiffs initially pled a violation of a third statute, 18 U.S.C.
§ 2339C, which criminalizes providing or collecting funds with
knowledge that such funds would be used to carry out acts intending
to cause death or serious bodily injury in order to intimidate a
population or government. See Am. Compl. ¶¶ 116, 121-29. The
district court dismissed this claim because § 2339C was enacted in
2002, post-dates the conduct at issue in this case, and does not apply
retroactively. See Owens v. BNP Paribas S.A., 235 F. Supp. 3d 85,
98 (D.D.C. 2017). Plaintiffs do not appeal this aspect of the district
court’s decision and we therefore do not address the § 2339C claim.
5
The district court held that Plaintiffs failed to plausibly allege
that BNPP had sufficient knowledge of the Sudanese banks’ ultimate
investments to satisfy the scienter requirements of either 18 U.S.C.
§ 2339A or § 2339B. See Owens, 235 F. Supp. 3d at 98-99. Because
we ultimately resolve the issue of primary liability on grounds of
causation, we do not decide whether BNPP actually violated either
§ 2339A or § 2339B. Nor do we decide whether BNPP’s violation of
either of those provisions would have qualified as an act of
“international terrorism” under the ATA.
6
Because BNPP’s alleged conduct took place in 1997-98, the
1996 versions of §§ 2339A and 2339B apply to this case. See 18
U.S.C. §§ 2339A(a), 2339B(a)(1) (1996).
8
Plaintiffs allege that they were injured “by reason of”
BNPP’s material aid and support to al Qaeda in violation of
§§ 2339A and 2339B. In the alternative, Plaintiffs allege that
BNPP’s conduct “constituted aiding and abetting” al Qaeda’s
acts of international terrorism under the ATA. Am. Compl.
¶ 130.7
7
As the district court observed, “Plaintiffs’ complaint is not a
model of clarity.” Owens, 235 F. Supp. 3d at 91 n.5. In particular, it
is unclear whether the complaint alleges only that BNPP is liable as
a primary violator of § 2333 or if it also alleges BNPP is liable as an
aider and abettor of an ATA violation. While Plaintiffs use the
language of aiding and abetting liability, they never actually list a
claim for relief premised on civil aiding and abetting under § 2333.
Nevertheless, because the parties spent much of their briefing
debating the availability of aiding and abetting liability under § 2333,
the district court assumed that Plaintiffs asserted those claims. Id.
Plaintiffs continue to press for aiding and abetting liability. We
follow the district court and construe Plaintiffs’ complaint to include
the claim.
Additionally, Plaintiffs pepper their complaint with allegations
that BNPP “conspired” with Sudan to provide financial services to al
Qaeda. See, e.g., Am. Compl. ¶¶ 7, 8, 107, 110-11, 126. On appeal,
Plaintiffs continue to claim briefly that BNPP is liable pursuant to
principles of civil conspiracy. If civil conspiracy were available,
BNPP would be liable if (1) BNPP entered into an “agreement” with
Sudan and al Qaeda; (2) BNPP participated in an “unlawful act, or a
lawful act in an unlawful manner”; (3) Plaintiffs’ injuries were
caused by an “unlawful overt act performed by one of the parties to
the agreement”; and (4) the “overt act was done pursuant to and in
furtherance of the common scheme.” Halberstam v. Welch, 705 F.2d
472, 477 (D.C. Cir. 1983). However, as we discuss below, just as
Plaintiffs cannot pursue a theory of recovery based on aiding and
abetting liability under § 2333, they also cannot pursue one based on
conspiracy liability. See infra note 12.
9
After Plaintiffs filed their complaint, BNPP moved to
dismiss the suit, arguing that the complaint failed to state a
claim for which relief may be granted under the ATA. The
district court granted BNPP’s motion. See Owens v. BNP
Paribas S.A., 235 F. Supp. 3d 85, 100 (D.D.C. 2017). Plaintiffs
timely appealed.
II
The district court had jurisdiction under the ATA. See 18
U.S.C. § 2333(a) (granting any ATA claimant the right to sue
“in any appropriate district court of the United States”). We
have appellate jurisdiction under 28 U.S.C. § 1291.
We review de novo the district court’s order granting
BNPP’s motion to dismiss. See Hurd v. District of Columbia,
864 F.3d 671, 678 (D.C. Cir. 2017).
III
We first address whether Plaintiffs sufficiently allege that
BNPP is directly liable under the ATA. Recall that any ATA
claim requires that a U.S. national be injured “by reason of” an
act of international terrorism. Plaintiffs are all U.S. nationals
and we assume here that BNPP’s conduct violated the material-
support statutes and therefore constituted an act of international
terrorism. We focus only on whether Plaintiffs have
sufficiently alleged that they were injured “by reason of”
BNPP’s actions.
A
Our analysis of a motion to dismiss for failure to state a
claim follows a familiar process. “To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
10
accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.
Cir. 2009). 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.” Iqbal, 556 U.S. at 678.
In determining a complaint’s plausibility, we accept as true
all of the complaint’s factual allegations and draw all
reasonable inferences in favor of the plaintiffs. See City of
Harper Woods Emps.’ Ret. Sys. v. Olver, 589 F.3d 1292, 1298
(D.C. Cir. 2009); see also Atherton, 567 F.3d at 677. However,
we “need not accept inferences unsupported by facts or legal
conclusions cast in the form of factual allegations.” City of
Harper Woods, 589 F.3d at 1298. “Nor must we accept as true
the complaint’s factual allegations insofar as they contradict
exhibits to the complaint or matters subject to judicial notice.”
Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004). Public
records are subject to judicial notice on a motion to dismiss
when referred to in the complaint and integral to the plaintiff’s
claim. Id. at 965.
B
The district court held and Plaintiffs do not dispute that the
ATA’s “by reason of” language demands a showing of
proximate causation. See Owens, 235 F. Supp. 3d at 95-97;
Plaintiffs Br. 20; Reply Br. 7. To survive a motion to dismiss
for failure to state a claim, Plaintiffs must therefore plausibly
allege (1) that BNPP’s acts were “a ‘substantial factor’ in the
sequence of events” that led to their injuries and (2) that those
injuries “must have been ‘reasonably foreseeable or anticipated
as a natural consequence’ of” BNPP’s conduct. Owens v.
11
Republic of Sudan, 864 F.3d 751, 794 (D.C. Cir. 2017) (quoting
Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013)).8 The
only dispute is whether the factual allegations set forth in
Plaintiffs’ complaint meet this standard.
Plaintiffs contend BNPP’s knowing manipulation of
currency on behalf of Sudanese banks was a proximate cause
of the injuries they suffered in the embassy bombings.
Meanwhile, BNPP argues that the ATA’s “by reason of”
proximate causation requirement cannot be satisfied when a
defendant is alleged only to have transferred funds to a state
sponsor of terrorism that later supports a terrorist act.
8
After briefing and oral argument in this appeal, the Ninth
Circuit issued a decision interpreting the ATA’s “by reason of”
language. See Fields v. Twitter, Inc., 881 F.3d 739, 744-49 (9th Cir.
2018). The Ninth Circuit held that to establish proximate causation
under the ATA’s “by reason of” standard there must be “some direct
relation between the injury asserted and the injurious conduct
alleged.” Id. at 745 (quoting Holmes v. Sec. Inv’r Prot. Corp., 503
U.S. 258, 268 (1992)); see also id. at 749 (“A plaintiff must show at
least some direct relationship between the injuries that he or she
suffered and the defendant’s acts to bring a successful ATA claim.”).
The Ninth Circuit suggested that this direct-relation requirement
might represent a “higher” standard for proximate causation than the
two-prong formulation we adopted from Rothstein in Owens. See id.
at 744. We are not so sure. As we read Rothstein, the Second
Circuit’s discussion of proximate causation implies that requiring an
act to be “a substantial factor in the sequence of responsible
causation” likewise requires sufficient directness. See Rothstein, 708
F.3d at 91-92. Even the Ninth Circuit refers to Rothstein’s decision
to equate the substantial-factor requirement with a direct-relation
requirement. See Fields, 881 F.3d at 747 (discussing Rothstein’s
quotation of Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461
(2006), in which the Supreme Court stated that “the central question”
for proximate causation is “whether the alleged violation led directly
to the plaintiff’s injuries”).
12
We must first determine which factual allegations in
Plaintiffs’ complaint speak to BNPP’s conduct prior to the
1998 bombings. We must likewise determine whether
Plaintiffs’ inferences from those facts are reasonable, such that
they plausibly state a claim for relief. That is, we must
ultimately decide whether the factual allegations and
reasonable inferences from Plaintiffs’ complaint plausibly
allege that BNPP proximately caused the embassy bombings.
Regarding BNPP’s conduct, Plaintiffs’ complaint relies
almost entirely on the statement of facts that BNPP filed in
district court when it pleaded guilty in 2014 to violating various
U.S. sanctions.9 From these stipulated facts, Plaintiffs allege
that BNPP “move[d] large amounts of money throughout the
U.S. financial system on behalf of” Sudan and al Qaeda
“between 1997 up to and including August 7, 1998,” the date
of the embassy bombings. Am. Compl. ¶ 111; see also id. ¶ 86
(alleging that “starting from at least 1997” BNPP “became key
to allowing Sudan to sell oil through the United States banking
system, thereby allowing Sudan to raise money to buy arms and
supplies for” al Qaeda); id. ¶ 127 (alleging that beginning in
1997 BNPP provided “substantial banking services to
Sudanese banks and financial institutions controlled by Sudan
including moving billions of dollars through the United States
financial market”).
9
The complaint also briefly incorporates a stipulation by BNPP
in a consent order filed in the New York courts. See Am. Compl. ¶ 88
(quoting New York State Department of Financial Services Consent
Order: In re BNP Paribas, S.A. at 6-7 (June 30, 2014), J.A. 132-33).
However, the factual allegation drawn from the consent order is
virtually identical to one made in BNPP’s stipulated statement of
facts. See id. ¶ 90 (quoting Statement of Facts ¶ 23, J.A. 99).
13
Most of the facts to which BNPP stipulated in federal court
involved conduct after the embassy bombings, which have no
bearing on what actions “caused” the bombings. In fact, only
two stipulated facts repeated in the complaint occurred before
the embassy bombings. First, BNPP agreed to become the sole
“correspondent bank” in Europe for the Sudanese government,
meaning nearly all major Sudanese banks would have U.S.
dollar accounts with BNPP. Id. ¶ 82 (quoting Statement of
Facts ¶ 19, J.A. 96). Second, to disguise the true nature of
BNPP’s later transactions with Sudanese banks and to evade
U.S. sanctions, BNPP established relationships with
international “satellite banks.” Id. ¶ 90 (quoting Statement of
Facts ¶ 23, J.A. 99). Neither of these allegations speaks to
whether BNPP began moving Sudanese resources through the
U.S. financial system prior to the embassy bombings.
In alleging that transactions between BNPP and Sudan
began in 1997, Plaintiffs also rely on a blatant misinterpretation
of BNPP’s stipulations. Plaintiffs allege that BNPP admitted
that “in the months and years” following a 1997 decision to use
an unaffiliated bank in the United States (captioned in the
statement of facts as “U.S. Bank 1”) as its “principal means for
clearing U.S. dollar transactions” with sanctioned Sudanese
banks, its personnel were aware that BNPP was circumventing
U.S. sanctions. Id. ¶ 84; see also id. ¶ 85 (quoting Statement of
Facts ¶ 31, J.A. 103). But Plaintiffs misrepresent the timeline
established by BNPP’s stipulations. The decision to use U.S.
Bank 1 did not occur in 1997, as Plaintiffs claim. Rather, BNPP
admitted that it decided to use U.S. Bank 1 at a meeting that
took place shortly after BNPP entered into a Memorandum of
Understanding with federal and state authorities regarding
BNPP’s failure to comply with a federal anti-money-
laundering statute. See Statement of Facts ¶ 29, J.A. 102. BNPP
entered into that agreement in September 2004. Id. ¶ 28, J.A.
101-02. Establishing that BNPP processed U.S. dollars for
14
Sudan “in the months and years” after a decision made in 2004
does nothing to support the existence of banking transactions
between BNPP and Sudan before the 1998 embassy bombing.10
At bottom, Plaintiffs do not allege facts addressing directly
whether BNPP began to process funds for Sudan before the
embassy bombings.
That said, Plaintiffs’ failure to allege transactions between
BNPP and Sudan before the bombings does not end our
inquiry. We must also grant Plaintiffs “the benefit of all
reasonable inferences derived from the facts alleged,” Bregman
v. Perles, 747 F.3d 873, 875 (D.C. Cir. 2014), and will
therefore consider whether we can reasonably infer the
existence of transactions between BNPP and Sudan from the
well-pleaded facts that Plaintiffs do allege. We can. Plaintiffs
offer factual allegations establishing a general banking
relationship between BNPP and Sudan as early as 1997. See
Am. Compl. ¶ 82. Plaintiffs also plead facts showing that
before the bombings BNPP developed relationships with
“satellite banks” to “help disguise the true nature of
transactions with sanctioned Sudanese banks.” Id. ¶ 90(quoting Statement of Facts ¶ 23, J.A. 99). Given these
accepted facts, we think it reasonable to infer that the banking
relationship between BNPP and Sudan that developed before
the bombings involved some form of financial services,
including BNPP’s processing of funds for Sudan.
10
Moreover, in a portion of the stipulated statement of facts
that Plaintiffs neglected to cite in their complaint, BNPP even
indicated that it only began processing funds for Sudan in 2000, long
after the embassy bombings. See Statement of Facts ¶ 19, J.A. 96
(“In addition to processing U.S. dollar transactions, in 2000,
BNPP . . . also developed a business in letters of credit for the
Sudanese banks.”).
15
“But even if the complaint’s well-pleaded facts” of a
banking relationship “give rise to a plausible inference” that
BNPP processed funds for Sudan before the bombings, “that
inference alone would not entitle [Plaintiffs] to relief.” Iqbal,
556 U.S. at 682. To establish a plausible claim for relief under
the ATA, Plaintiffs must plausibly allege proximate causation.
See Owens, 864 F.3d at 794. Among other requirements that
we need not address here, Plaintiffs must plausibly allege that
any inferred transactions between BNPP and Sudan were “a
‘substantial factor’ in the sequence of events that led to
[Plaintiffs’] injur[ies].” Id. (quoting Rothstein, 708 F.3d at
91).11
In addressing whether BNPP’s alleged conduct was a
“substantial factor” in producing Plaintiffs’ injuries, we are
guided by Rothstein, in which the Second Circuit confronted a
remarkably similar set of facts. The Second Circuit held that
another bank, UBS, could not be liable under the ATA for
merely converting funds into U.S. currency for Iran, another
state sponsor of terrorism. The plaintiffs there failed to plead
non-conclusory allegations of a “proximate causal relationship
between the cash transferred by UBS to Iran and the terrorist
attacks by H[e]zbollah and Hamas that injured plaintiffs.”
Rothstein, 708 F.3d at 97. The Rothstein plaintiffs had made
only general allegations that because Iran was a state sponsor
of terrorism, UBS knew the cash dollars it had processed for
Iran would be used by Hezbollah or Hamas. Id. But because
Iran “is a government, and as such it has many legitimate
11
Proximate causation also requires that Plaintiffs’ injuries
were “reasonably foreseeable or anticipated as a natural
consequence” of BNPP’s conduct. Owens, 864 F.3d at 794 (quoting
Rothstein, 708 F.3d at 91). Because we conclude that Plaintiffs’
complaint fails on “substantial factor” grounds, we need not address
reasonable foreseeability.
16
agencies, operations, and programs to fund,” the plaintiffs had
failed to adequately plead “that the moneys UBS transferred to
Iran were in fact sent to H[e]zbollah or Hamas or that Iran
would have been unable to fund the attacks by H[e]zbollah and
Hamas without the cash provided by UBS.” Id.
Rothstein correctly recognized that when a defendant is
more than one step removed from a terrorist act or
organization, plaintiffs suing under the ATA must allege some
facts demonstrating a substantial connection between the
defendant and terrorism. In Rothstein, the presence of an
independent intermediary, Iran, created a more attenuated
chain of causation connecting UBS to Hezbollah and Hamas
than one in which a supporter of terrorism provides funds
directly to a terrorist organization. See, e.g., Boim III, 549 F.3d
at 698 (holding that donors to Hamas could proximately cause
a Hamas victim’s death as “knowing contributors [who] would
have significantly enhanced the risk of terrorist acts and thus
the probability that the plaintiff’s decedent would be a victim”).
Furthermore, when an intermediary is a sovereign state
with “many legitimate agencies, operations, and programs to
fund,” the need for additional allegations supporting
substantiality is all the more acute. Rothstein, 708 F.3d at 97.
That an intermediating country is a state sponsor of terrorism
does not reduce the need for evidence of a substantial
connection between the defendant and a terrorist act or
organization. If Congress intended that “any provider of U.S.
currency to a state sponsor of terrorism would be strictly liable
for injuries subsequently caused by a terrorist organization
associated with that state,” it would have done so explicitly. Id.
at 96. For example, Congress found that money earmarked for
peaceful activities donated directly to a terrorist organization
nevertheless furthers the organization’s violent ends enough to
justify a prohibition on all financial support for such an
17
organization. See Holder v. Humanitarian Law Project, 561
U.S. 1, 29 (2010). But Congress made no similar findings with
regard to state sponsors of terrorism. See, e.g., Abecassis v.
Wyatt, 785 F. Supp. 2d 614, 642 (S.D. Tex. 2011); Rothstein v.
UBS AG, 772 F. Supp. 2d 511, 516 (S.D.N.Y. 2011). In fact,
Congress affirmatively chose to permit financial transactions
with state sponsors of terrorism, so long as the prospective
funder obtains a license from the Department of State. See 50
U.S.C. § 4605(j). Reading § 2333 to permit strict civil liability
for all such transactions with state sponsors of terrorism would
be inconsistent with Congress’s regulatory scheme.
In sum, in order to satisfy proximate causation under the
ATA, Plaintiffs’ complaint needs to adequately plead facts
alleging that BNPP substantially contributed to Plaintiffs’
injuries because the funds to Sudan “actually [were] transferred
to al Qaeda . . . and aided in” the embassy bombings. In re
Terrorist Attacks on Sept. 11, 2001, 714 F.3d 118, 124 (2d Cir.
2013). The complaint alleges that the Sudanese banks
transmitted the funds from BNPP directly to al Qaeda, see Am.
Compl. ¶¶ 8, 16, 110, and that these funds from BNPP were
necessary for al Qaeda to carry out the embassy bombings, see
id. ¶¶ 12-13, 16, 107. But as in Rothstein, “these are conclusory
allegations that do not meet Twombly’s plausibility standard
with respect to the need for a proximate causal relationship
between the cash transferred by [BNPP] to [Sudan] and the
terrorist attacks by [al Qaeda] that injured plaintiffs.”
Rothstein, 708 F.3d at 97. All told, “[w]e see no nonconclusory
allegation in the Complaint that plausibly shows that the
moneys [BNPP] transferred to [Sudan] were in fact sent to [al
Qaeda] or that [Sudan] would have been unable to fund the
attacks by [al Qaeda] without the cash provided by [BNPP].”
Id.
18
Plaintiffs’ complaint fails to plausibly allege that any
currency processed by BNPP for Sudan was either in fact sent
to al Qaeda or necessary for Sudan to fund the embassy
bombings. As such, Plaintiffs fail to adequately allege that they
were injured “by reason of” BNPP’s acts and cannot state a
claim for relief based on a theory of primary liability under the
ATA.
IV
We next address whether Plaintiffs can bring a claim of
aiding and abetting under the ATA. If aiding and abetting
liability were available under the ATA, BNPP would not need
to satisfy any of the ATA’s elements to be held liable for
Plaintiffs’ injuries. Instead, BNPP would be liable for al
Qaeda’s acts of international terrorism, so long as BNPP
“knowingly and substantially assist[ed] the principal violation”
of the ATA by al Qaeda and was “generally aware” of its role
as part of al Qaeda’s illegal activities when providing that
assistance. Halberstam v. Welch, 705 F.2d 472, 477 (D.C. Cir.
1983); see also Justice Against Sponsors of Terrorism Act
(JASTA), Pub. L. No. 114-222, § 2(a)(5), 130 Stat. 852, 852
(2016) (describing Halberstam as the “leading case regarding
Federal civil aiding and abetting and conspiracy liability”).
Before 2016, the ATA made no explicit reference to aiding
and abetting liability. Then, in 2016, Congress enacted JASTA
to “provide civil litigants with the broadest possible basis . . .
to seek relief against [those] that have provided material
support, directly or indirectly, to foreign organizations or
persons that engage in terrorist activities against the United
States.” JASTA, § 2(b), 130 Stat. at 853. Specifically, Congress
maintained that it was “necessary to recognize the substantive
causes of action for aiding and abetting and conspiracy liability
under” the ATA. Id. § 2(a)(4), 130 Stat. at 852. JASTA
19
therefore amended § 2333 to expressly state that “liability
[under the ATA] may be asserted as to any person who aids
and abets, by knowingly providing substantial assistance” to an
act of international terrorism or “who conspires with” any
person committing such an act. Id. § 4(a), 130 Stat. at 854
(codified at 18 U.S.C. § 2333(d)(2)).
However, this amended version of § 2333 is inapplicable
to Plaintiffs’ present suit. JASTA’s provision for aiding and
abetting liability only applies to injuries arising “on or after
September 11, 2001.” JASTA § 7(2), 130 Stat. at 855. Because
Plaintiffs were injured in bombings that took place before this
effective date, they must instead rely on the pre-JASTA version
of § 2333.
In answering whether the pre-JASTA version of § 2333
incorporated aiding and abetting liability, we are guided by the
Supreme Court’s decision in Central Bank of Denver, N.A. v.
First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994).
Central Bank concerned § 10(b) of the Securities Exchange Act
of 1934, a provision that renders unlawful various manipulative
or deceptive acts made in connection with the purchase or sale
of securities. In the 1970s, the Supreme Court found an implied
private right of action in § 10(b). See Superintendent of Ins. of
N.Y. v. Bankers Life & Cas. Co., 404 U.S. 6, 13 n.9 (1971).
Then, in Central Bank the Court held that private civil liability
under § 10(b) did not extend to those who only aided and
abetted a manipulative or deceptive practice. The Court’s
reasoning was simple: “If . . . Congress intended to impose
aiding and abetting liability, we presume it would have used
the words ‘aid’ and ‘abet’ in the statutory text. But it did not.”
Central Bank, 511 U.S. at 177. Because “Congress knew how
to impose aiding and abetting liability when it chose to do so,”
and “[b]ecause the text of § 10(b) does not prohibit aiding and
20
abetting,” courts “cannot amend the statute to create [that]
liability.” Id. at 176, 177, 191.
The key takeaway from Central Bank is that when
Congress creates a private cause of action, aiding and abetting
liability is not included in that cause of action unless Congress
speaks to it explicitly. This presumption against the inclusion
of aiding and abetting liability rests partially on the fact that
“Congress has not enacted a general civil aiding and abetting
statute,” id. at 182 (emphasis added), akin to the general
criminal aiding and abetting statute, see 18 U.S.C. § 2(a).
Therefore, when Congress enacts a statute providing for private
civil liability “there is no general presumption that the plaintiff
may also sue aiders and abettors.” Central Bank, 511 U.S. at
182. In the end, “it is not plausible to interpret the statutory
silence as tantamount to an implicit congressional intent to
impose . . . aiding and abetting liability.” Id. at 185.
So too with the ATA. As the Second and Seventh Circuits
correctly concluded, § 2333 does not allow for aiding and
abetting liability because that provision is “silent as to the
permissibility of aiding and abetting liability.” Rothstein, 708
F.3d at 97; see also Boim III, 549 F.3d at 689. Moreover, other
provisions in the ATA, such as § 2339A or § 2339B, clearly
create criminal liability for conduct that strongly resembles
aiding and abetting. See Boim III, 549 F.3d at 691-92.
Therefore, it is doubtful “that Congress, having included in the
ATA several express provisions with respect to aiding and
abetting in connection with the criminal provisions, can have
intended § 2333 to authorize civil liability for aiding and
abetting through its silence.” Rothstein, 708 F.3d at 98; see also
Central Bank, 511 U.S. at 184 (“The fact that Congress chose
to impose some forms of secondary liability, but not others,
indicates a deliberate congressional choice with which the
courts should not interfere.”).
21
Plaintiffs maintain that Congress’s 2016 passage of
JASTA confirms that § 2333 incorporated aiding and abetting
liability all along. We disagree. We generally presume that
congressional amendments make substantive changes to
existing law. See Ross v. Blake, 136 S. Ct. 1850, 1858 (2016)
(“When Congress amends legislation, courts must ‘presume it
intends [the change] to have real and substantial effect.’”
(quoting Stone v. INS, 514 U.S. 386, 397 (1995))). We cannot
“instead act[] as though the amendment . . . had not taken
place.” Id. That said, sometimes when Congress “adopts a new
clarifying law or rule, it does not necessarily follow that an
earlier version did not have the same meaning.” Baptist Mem’l
Hosp.-Golden Triangle v. Sebelius, 566 F.3d 226, 229 (D.C.
Cir. 2009).
JASTA does not indicate that Congress merely “clarified”
existing law when it amended § 2333. In fact, Congress itself
stated that its amendment in JASTA was “necessary to
recognize the substantive causes of action for aiding and
abetting and conspiracy liability under” the ATA. JASTA
§ 2(a)(4), 130 Stat. at 852 (emphasis added). If anything,
JASTA’s passage confirms that Congress knows how to
provide for aiding and abetting liability explicitly and that the
version of § 2333 in effect at the time of the embassy bombings
did not provide for that liability. At the very least, nothing in
JASTA shows with sufficient clarity that its amendment in
§ 4(a) merely clarified § 2333’s preexisting meaning.
Although Central Bank seems to resolve with ease the
availability of aiding and abetting liability, several courts in
older decisions have disregarded Central Bank’s applicability
to the ATA. For example, some courts have distinguished
Central Bank because it involved an implied cause of action in
the Securities Exchange Act of 1934, while the ATA provides
22
an express cause of action. See Boim I, 291 F.3d at 1019; Wultz
v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 55 (D.D.C.
2010); Linde v. Arab Bank, PLC, 384 F. Supp. 2d 571, 583
(E.D.N.Y. 2005).
But nothing in Central Bank’s analysis turned on the
implied character of § 10(b)’s cause of action, and the Court’s
reasoning applies to express causes of action as well. The Court
found that because Congress did not attach aiding and abetting
liability to express causes of action in other securities laws,
“Congress likely would not have attached aiding and abetting
liability to § 10(b) if it provided a private § 10(b) cause of
action.” Central Bank, 511 U.S. at 179. But why did the Court
conclude that Congress had not attached aiding and abetting
liability to the securities laws’ express causes of action in the
first place? Simple: The express causes of action were just as
silent as to aiding and abetting liability as § 10(b)’s implied
cause of action. In other words, the Court reasoned as a general
matter that a statute provides for aiding and abetting liability
only if expressly set out by Congress. Therefore, Central Bank
relied on a principle of statutory interpretation that applies
equally with respect to implied and express causes of action.
Courts have also sometimes premised aiding and abetting
liability under the ATA on legislative history that purportedly
expresses Congress’s “intent to cut off the flow of money to
terrorists at every point along the causal chain of violence.”
Boim I, 291 F.3d at 1021 (citing S. Rep. No. 102-342, at 22
(1992)). Apparently, refusing to impose liability on aiders and
abettors of terrorism would thwart that intent and conflict with
congressional understandings that the ATA “empowers victims
[of terrorism] with all the weapons available in civil litigation,”
and “accords victims of terrorism the remedies of American
tort law,” 137 Cong. Rec. S4,511 (daily ed. Apr. 16, 1991)
23
(statement of Sen. Grassley), including aiding and abetting
liability, see Wultz, 755 F. Supp. 2d at 56.
But these arguments overstate the role of legislative
history in statutory interpretation. Some think it is appropriate
to consult legislative history as “a way to understand the text”
of a statute, while others go further and tout legislative history
as a “more authentic . . . expression of legislators’ will” than
the statute’s text. In re Sinclair, 870 F.2d 1340, 1342-43 (7th
Cir. 1989). The former of these two uses is perhaps acceptable
but the latter is certainly not. While legislative history may help
discern the meaning of an otherwise ambiguous text, see
Milner v. Dep’t of the Navy, 562 U.S. 562, 572 (2011), it “may
not be used show an ‘intent’ at variance with the meaning of
the text,” Sinclair, 870 F.2d at 1344. Nor is any reference to
legislative history necessary “when the meaning of a statute is
clear enough on its face.” Owens, 864 F.3d at 777.
Section 2333 is not ambiguous, so no appeal to legislative
history is necessary or helpful here. As Central Bank teaches,
“the statutory text controls the definition of conduct covered
by” § 2333, and when the statutory text is silent there simply is
no “congressional intent to impose . . . aiding and abetting
liability.” 511 U.S. at 175, 185. In other words, when Congress
is silent as to aiding and abetting liability, it has unambiguously
foreclosed that theory of recovery. Given that § 2333 is silent
with respect to aiding and abetting liability, Plaintiffs’ appeals
to the ATA’s legislative history do not attempt to clarify the
meaning of any words that appear in § 2333. Instead, the
proffered legislative history is used to supplement the ATA’s
text and effectively “amend the statute to create liability” for
aiding and abetting terrorism. Id. at 177. This Central Bank
does not permit.
24
Central Bank’s reasoning is inescapable: Because the
ATA does not expressly provide for aiding and abetting
liability, such liability is unavailable. 12 Therefore, the ATA
does not allow for any of Plaintiffs’ claims against BNPP
premised on aiding and abetting liability, and the district court
rightly dismissed them.
V
We affirm the district court’s judgment.
So ordered.
12
The Court’s reasoning in Central Bank also forecloses
Plaintiffs’ appeal to civil conspiracy liability, given the absence of
an explicit congressional statement addressing it. See Central Bank,
511 U.S. at 200 n.12 (Stevens, J., dissenting) (stating that “[t]he
Court’s rationale would sweep away the decisions recognizing that a
defendant may be found liable in a private action for conspiring to
violate § 10(b)”); accord Kramer v. Perez, 595 F.3d 825, 830 (8th
Cir. 2010); Regents of the Univ. of Cal. v. Credit Suisse First Bos.
(USA), Inc., 482 F.3d 372, 392 (5th Cir. 2007); Dinsmore v.
Squadron, Ellenoff, Plesent, Sheinfeld & Sorkin, 135 F.3d 837, 841
(2d Cir. 1998); In re GlenFed, Inc. Sec. Litig., 60 F.3d 591, 592 (9th
Cir. 1995); cf. SEC v. Johnson, 650 F.3d 710, 714-15 (D.C. Cir.
2011) (indicating that Central Bank precludes a co-conspirator
theory of venue because there would be “no statutory basis for
venue”).