Joshua Atchley et al. v. AstraZeneca UK et al, was filed in the U.S. District Court for the District of Columbia in 2017 by veterans of the Iraq war and their families (plaintiffs) for injuries and deaths suffered in the war. The defendants are several major pharmaceutical and health sector companies that responded to a U.S. government request to provide lifesaving medicines to the Iraqi Ministry of Health (Ministry) during the war. After the District Court dismissed the case in July 2020, the plaintiffs appealed to in the Court of Appeals for the District of Columbia Circuit. The Charity & Security Network (C&SN) and InterAction filed a “friend of the court” brief explaining that if the court were to accept the plaintiffs’ arguments, the result would cripple the important work of NPOs that operate in areas where terrorist groups are present. Although the Court of Appeals reversed the lower court decision and remanded the case for further proceedings, it stated that its interpretation of the law would not extend to aid that is provided to non-sanctioned organizations and later “stolen, diverted, or extorted” by terrorists. The defendants’ petition for rehearing is pending.
Plaintiffs Allegations and Legal Arguments
The plaintiffs argue that the companies aided and abetted terrorism by doing business with the Ministry when it was supposedly controlled by a Shia militia, Jaysh al-Mahdi, a group that the U.S. government chose not to designate as a terrorist entity. They allege that the militia used the Ministry as a front to fund attacks on U.S. troops. Therefore, the plaintiffs argue, the companies should be held liable under the ATA because they gave free goods and discounts to the Ministry when they should have known that it was controlled by forces that were using Ministry resources to commit acts of terrorism.
In their initial pleadings, the plaintiffs sought to substitute a strict liability (known or should have known) standard in place of the mental state requirement imposed by the courts in ATA cases. Plaintiffs attempt to hold the companies liable under the ATA without alleging they knew that the medical supplies they provided played a role in terrorism or that the companies “shared any terrorist’s state of mind.”
The plaintiffs also stretched the aiding-and-abetting argument to employ third-degree-of-separation reasoning, seeking to impose liability for acts that were several steps removed from the terrorist acts and actors that caused their injuries. Specifically, they argued that the Ministry had ties to Jaysh al-Mahdi (which is not an FTO), which in turn had ties to Hezbollah (which is an FTO). The plaintiff’s chain of causation also attempts to connect the companies’ provision of drugs and medical supplies to the Ministry to the theft of these items from the Ministry and their sale on the black market.
Anti-Terrorism Act Basics
The Anti-Terrorism Act (ATA) (18 U.S.C. §2333), part of the “material support” statutes, allows U.S. persons to sue for any injury caused by an act of international terrorism committed, planned or authorized by an organization that was designated as a Foreign Terrorist Organization (FTO) under Section 219 of the Immigration and National Act. Any person who knowingly provides substantial assistance to the terrorists, or who conspires with the person who committed the terrorist act, can be liable under the ATA.
To establish liability under the ATA, a plaintiff must prove:
—An act of international terrorist committed by an FTO
—An injury to a U.S. person, or their estate, survivors or heirs
—Conduct that “proximately” caused the injury, or secondary liability if the defendant aided and abetted the acts of terrorism by providing substantial assistance
—Defendant must have general awareness of its role as part of the overall illegal activity at the time it provides assistance.
ATA cases can have implications for nonprofit organizations (NPOs) working in proximity to terrorist groups. ATA raise the threat civil liability for multiple degrees of separation from a FTO or for use of aid that is stolen. If broad theories of liability currently being argued in federal courts are accepted, the ability of NPOs’ to operate life-saving programs would be severely limited.
Amicus Brief and Counter Arguments
C&SN and InterAction filed the brief to rebut several arguments made by the plaintiffs in the case. To access populations in need, NPOs must interact with local authorities, whoever they may be, on a wide range of matters including security, taxes and customs, and other operational and programming matters, the brief explains.
The ATA permits lawsuits against those who knowingly provide substantial assistance, or who conspire with the person who committed the terrorist acts, as long as the acts were planned or authorized by an FTO. However, the plaintiffs’ interpretation of this provision would punish NPOs that engage or partner with governments and organizations to provide critical aid and could expose NPOs to lawsuits “for providing legitimate aid to government and organizations around the world,” the brief states. Under this theory, NPOs could be liable for terrorist acts by providing assistance to a non- sanctioned organization if the aid is later stolen, diverted, or extorted by groups that engage in terrorism.
Finally, plaintiff’s theory of the FTO element of aiding-and-abetting would frustrate Congressional intent and U.S. foreign policy objectives. Plaintiffs seek to impose aiding-and-abetting liability on Defendants for terrorist attacks by a group that the U.S. government chose not to designate as an FTO. The brief explains, “As the ATA makes clear, secondary liability will attach only when a defendant aids attacks that are committed, planned, or authorized by an FTO.” However, plaintiffs allege that the companies’ business with the Ministry indirectly aided Jaysh al-Mahdi, a group that has alleged “ties” to the FTO Hezbollah but that the U.S. government has declined to designate as an FTO. “To accept this theory would be to dramatically expand the scope of potential liability for NGOs and frustrate congressional intent and U.S. foreign-policy objectives.”
Court of Appeals Opinion and Statement on NPOs
Although the three-judge panel of the Court of Appeals rejected the reasoning of the lower court in dismissing the case, it did respond to concerns raised in the NPOs’ amicus brief. The court stated that:
Recognizing proximate causation here is a far cry from holding the causation requirement met by non-governmental organizations “providing assistance to a non-sanctioned organization if the aid is later stolen, diverted, or extorted by groups that engage in terrorism.” Amicus Br. of Charity & Security Network and InterAction: The American Council for Voluntary International Action, Inc. at 4-5; see also id. at 19-20.
While this provides some comfort to NPOs, it does not resolve the fundamental problems the broad standard for aiding and abetting lability in the court’s opinion.
The lower court’s ruling dismissing the complaint held that plaintiffs’ complaint failed to allege adequate facts to meet the legal standard for liability in ATA cases. In such cases federal rules require the Court of Appeals to assume facts alleged in the complaint are true. As a result, the Court of Appeals decision is not a finding of liability or fact. Instead, it decided that the legal standard the lower court used to determine the adequacy of the allegations in the complaint was incorrect and sent the case back to the lower court for further proceedings. If the petition for rehearing before the full nine-judge Court of Appeals is denied, the case will proceed in the District Court.
The Court of Appeals decision found that:
- On the issue of direct liability, it ruled the plaintiffs’ allegations that the Ministry was a front for Jaysh al-Mahdi, not an independent intermediary was adequate to allege that their injuries were proximately caused by the defendants, since the cash support of Jaysh al-Mahdi was a substantial factor in events leading to plaintiff’s injuries, which were reasonably foreseeable.
- On the issue of aiding and abetting liability (indirect), the court ruled that the allegations that Hezbollah’s “deep and far reaching” influence over Jaysh al-Mahdi meant that the requirement the attack be carried out by and FTO was met. It also found that the allegations supported the requirement that the defendants knowingly provided substantial assistance. The knowledge element does not require specific intent.
For a detailed summary of the case see Lawfare blog summary Circuit Court – https://www.lawfareblog.com/dc-circuit-opinion-atchley-v-astrazeneca
The Court of Appeals issued an order requiring Atchley plaintiffs to file a response to the defendants’ request for a rehearing.