Rivka Livnat v. Palestinian Authority , 851 F.3d 45 ( 2017 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2016 Decided March 24, 2017
No. 15-7024
RIVKA LIVNAT, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF BEN-YOSEF LIVNAT, ET
AL.,
APPELLANTS
v.
PALESTINIAN AUTHORITY, A/K/A THE PALESTINIAN INTERIM
SELF-GOVERNMENT AUTHORITY,
APPELLEE
Consolidated with 15-7025
Appeals from the United States District Court
for the District of Columbia
(No. 1:14-cv-00668)
(No. 1:14-cv-00669)
Jessica P. Weber argued the cause for appellants. With her
on the briefs were Andrew D. Levy and Alan I. Baron.
Peter Raven-Hansen and David A. Reiser were on the
brief for amici curiae Former Federal Law Enforcement
Officials in support of appellants.
2
Mitchell R. Berger argued the cause for appellee. With
him on the brief were Pierre H. Bergeron, John Burlingame,
Alexandra E. Chopin, and Gassan A. Baloul.
Before: GRIFFITH and WILKINS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: In 2011, Jewish worshippers
were shot by armed gunmen at Joseph’s Tomb, a holy site in
the West Bank believed by many to be the burial place of the
biblical patriarch. Among the victims were Ben-Yosef Livnat,
who was killed, and U.S. citizens Yitzhak Safra and Natan
Safra, who were wounded in the gunfire. The Livnat and Safra
families brought suit in federal district court seeking to hold the
Palestinian Authority vicariously liable for the attack. For the
reasons set forth below, we conclude that the suits may not be
brought in the courts of the United States.
I
According to the Livnats and Safras, the perpetrators of
the attack were the security guards hired to protect Joseph’s
Tomb by the Palestinian Authority. The Palestinian Authority
is a government headquartered in the West Bank city of
Ramallah. Established following the 1993 Oslo Accords
between Israel and the Palestine Liberation Organization, the
Palestinian Authority administers civilian and internal security
services in parts of the West Bank and the Gaza Strip. External
security remains within Israel’s control. See Interim
Agreement on the West Bank and the Gaza Strip, Isr.-P.L.O.,
art. X, Sept. 28, 1995, 36 I.L.M. 551, 561 [hereinafter Oslo II].
The Oslo Accords also circumscribe the Palestinian
Authority’s “powers and responsibilities in the sphere of
3
foreign relations.” Id. art. IX, 36 I.L.M. at 561. The Palestinian
Authority has non-member observer status in the United
Nations and receives foreign aid from the United States, the
European Union, and other sources. The United States does not
recognize the Palestinian Authority as a government of a
sovereign state.
The families allege that the guards who perpetrated the
attack at Joseph’s Tomb were acting within the scope of their
employment by the Palestinian Authority, which knew that the
commander of the guards had served time in Israeli prison on
terrorism-related charges. The families claim that the attack
was directed at the United States as “part and parcel of” the
Palestinian Authority’s “general practice of using terrorism to
influence United States public opinion and policy.” Compl. at
5, Livnat v. Palestinian Auth., No. 1:14-cv-00668 (D.D.C. Apr.
21, 2014); Compl. at 3, Safra v. Palestinian Auth., No.
1:14-cv-00669 (D.D.C. Apr. 21, 2014).
The Livnats and Safras filed identical lawsuits against the
Palestinian Authority in federal district court, bringing claims
under both the Antiterrorism Act, 18 U.S.C. § 2333, and
common-law tort. The Palestinian Authority moved to dismiss
for lack of personal jurisdiction, among other grounds. The
families opposed and filed cross-motions for leave to take
jurisdictional discovery. The court denied the families’
cross-motions for jurisdictional discovery, reasoning that their
proposed discovery would have been futile, and granted the
motions to dismiss.
The district court addressed the issue of personal
jurisdiction under Federal Rule of Civil Procedure 4(k)(2),
concluding that the Livnats and Safras had forfeited all other
statutory bases for personal jurisdiction. Livnat v. Palestinian
Auth., 82 F. Supp. 3d 19, 24-25 & n.9 (D.D.C. 2015); Safra v.
4
Palestinian Auth., 82 F. Supp. 3d 37, 43 & n.8 (D.D.C. 2015).
Rule 4(k)(2) permits a federal court to exercise personal
jurisdiction if the claim arises under federal law, process was
properly served, the defendant is not subject to jurisdiction in
any state court of general jurisdiction, and—the requirement at
issue here—jurisdiction “is consistent with the United States
Constitution and laws.” FED. R. CIV. P. 4(k)(2). The district
court held that this last requirement was not met. Applying the
Due Process Clause of the Fifth Amendment, the court found
that the Palestinian Authority was not “at home” in the United
States and that the attack was not sufficiently directed at the
United States.
The Livnats and Safras timely appealed, and their cases
are consolidated here. We have jurisdiction under 28 U.S.C.
§ 1291. In both cases, we review de novo the district court’s
dismissal for lack of personal jurisdiction, and we review for
abuse of discretion the denial of jurisdictional discovery. FC
Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir.
2008).
II
The question before us is whether the Fifth Amendment’s
Due Process Clause permits personal jurisdiction over the
Palestinian Authority in these disputes. We begin with the
contention by the Livnats and Safras that the Clause imposes
no limits at all on personal jurisdiction over the Palestinian
Authority.
A
In International Shoe Co. v. Washington, 326 U.S. 310
(1945), the Supreme Court gave the now-canonical
explanation of what “due process requires” before a defendant
outside a forum’s borders may be subject to suit: the defendant
5
must “have certain minimum contacts with [the forum] such
that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’” Id. at 316 (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Accordingly, we
have explained that the Fifth Amendment’s Due Process
Clause protects defendants from “being subject to the binding
judgments of a forum with which [they have] established no
meaningful contacts, ties, or relations,” and requires “fair
warning that a particular activity may subject them to the
jurisdiction of a foreign sovereign.” Mwani v. bin Laden, 417
F.3d 1, 11 (D.C. Cir. 2005) (quoting Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985)).
This general rule, however, has a few narrow exceptions.
Constitutional limits on the personal jurisdiction of the courts
do not protect entities that are not covered by the Due Process
Clause, and the language of the Clause speaks only of
“persons.” U.S. CONST. amend. V (“No person shall . . . be
deprived of life, liberty, or property, without due process of
law . . . .”). The Supreme Court held in South Carolina v.
Katzenbach, 383 U.S. 301 (1966), that States of the Union are
not “persons” under the Clause. Id. at 323-24. And we held in
Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d
82 (D.C. Cir. 2002), that neither are foreign states. Id. at 96.
Nor is the Palestinian Authority, according to the
appellants, who urge us to extend Price to the Palestinian
Authority by holding that Price applies not just to sovereign
foreign states, but to any foreign entity that “functions as a
government.” Appellants’ Br. 19.
We reject appellants’ reading of Price. To begin with,
Price represents a rare exception to the general rule that the
Due Process Clause protects all litigants in our courts,
especially by limiting the power of courts to hale defendants
6
before them. We are reluctant to undermine this general rule by
widening the Price exception. Indeed, we have previously
assumed that Price is narrower than the appellants maintain,
understanding its holding to be that “foreign sovereigns . . . are
not ‘persons’ under the Fifth Amendment’s Due Process
Clause.” GSS Grp. Ltd v. Nat’l Port Auth., 680 F.3d 805, 809
(D.C. Cir. 2012) (emphasis added); see also id. at 813
(describing Price’s reasoning as “put[ting] foreign sovereigns
in a separate constitutional category from ‘private entities’”
(emphasis added) (quoting Price, 294 F.3d at 98)).
We confirm that measured interpretation of Price today.
The rule in Price—that foreign states are not “persons” under
the Due Process Clause—applies only to sovereign foreign
states. 1 Nothing in Price, other precedent, or the appellants’
arguments compels us to extend the rule in Price to all foreign
government entities. And no party here argues that the
Palestinian Authority is a sovereign foreign state.
B
In Price, we held that the federal courts had personal
jurisdiction over Libya despite its lack of “minimum contacts”
with the United States, because “foreign states are not
‘persons’ protected by the Fifth Amendment.” 294 F.3d at 96.
We reached this conclusion for two principal reasons. First, in
light of Katzenbach’s holding that States of the Union are not
“persons” under the Due Process Clause, we decided that
foreign states are similarly situated. Id. at 96-97. Observing
1
We merely clarify what qualifies as a “foreign state” under
Price. Our holding does not bear on the separate question of whether
“an agency or instrumentality” of a foreign state “has a constitutional
status different from that of” the foreign state itself under the Due
Process Clause. TMR Energy Ltd. v. State Prop. Fund of Ukr., 411
F.3d 296, 301 (D.C. Cir. 2005).
7
that “in common usage, the term ‘person’ does not include the
sovereign,” id. at 96 (quoting Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 64 (1989)), and that “person” in the Due
Process Clause had already been interpreted to exclude States
of the Union, we asked whether there was any “compelling
reason to treat foreign sovereigns more favorably,” id. We
could identify none, because if anything the Constitution treats
foreign sovereigns less favorably. The States of the Union
“derive important benefits” from the Constitution (such as
protection against invasion, U.S. CONST. art IV, § 4) in
exchange for “abid[ing] by significant limitations” (such as the
supremacy of federal law, U.S. CONST. art. VI, cl. 2). Price,
294 F.3d at 96. By contrast, foreign states “are entirely alien to
our constitutional system,” and the Constitution neither confers
benefits nor imposes limitations as it does for States of the
Union. Id. at 97, 99. We concluded that “it would be highly
incongruous to afford greater Fifth Amendment rights to
foreign nations” than to States of the Union. Id. at 96.
Second, we explained that foreign states, as “the juridical
equals of the government that seeks to assert jurisdiction over
them,” can rely on “mechanisms in the international arena,”
instead of domestic law, to protect themselves. Id. at 98.
Therefore, foreign states can rely on those other protections
against U.S. government power, and do not need the Due
Process Clause. Id. at 97-99.
We also mentioned that it was “worth noting” that “serious
practical problems might arise” if foreign states enjoyed
due-process rights. Id. at 99. For example, foreign states might
challenge economic sanctions as violations of due process. Id.
We avoided such problems by holding that the Due Process
Clause does not protect foreign states.
8
The appellants contend that Price’s reasoning applies
equally in this case. But in Price, we had a particular type of
entity in mind. When addressing whether the Due Process
Clause applies to “foreign states,” we used that term
interchangeably with foreign “nations,” “governments,” and
“sovereigns.” See id. at 95-100. Libya was a “sovereign
nation” fairly described by all of those terms. Id. at 98. This
case is different. Both parties acknowledge that the Palestinian
Authority is not recognized by the United States as a
government of a sovereign state. And the appellants—even
though they seek to apply Price’s holding here—concede that
the Palestinian Authority is not sovereign in “law” or “fact,”
apparently referring to the Palestinian Authority’s limited
powers and incomplete independence from Israel. Appellants’
Br. 17 & n.3 (citing Ungar v. Palestine Liberation Org., 402
F.3d 274 (1st Cir. 2005), which held that the “reserved powers”
that Israel retained under the Oslo Accords “are incompatible
with the notion that the [Palestinian Authority] had
independent governmental control over the defined territory,”
and therefore the Palestinian Authority was not a foreign
“state” entitled to sovereign immunity, id. at 291). The
question, then, is whether Price’s rationales depended on the
fact that Libya was sovereign, or whether they extend to any
foreign government entity, even if not recognized as sovereign
by the United States and potentially lacking ultimate,
independent governing authority in key respects.
We think the former is correct: Price’s primary rationales
hinge on sovereignty. First, Price’s rationale that foreign states
have the same status as States of the Union under the Due
Process Clause is based on the notion that both are sovereign.
Indeed, our whole discussion of foreign states and States of the
Union was a comparison of two sets of sovereign entities. After
all, we started that discussion by observing that “in common
usage, the term ‘person’ does not include the sovereign.” Id. at
9
96 (quoting Will, 491 U.S. at 64). The analysis that followed
that observation considered whether the settled law that the
term “person” in the Due Process Clause excludes one set of
sovereigns—States of the Union—meant that the term also
excluded another set of sovereigns—foreign states. And in
considering that question, we compared how the Constitution
governs States of the Union and foreign states with respect to
attributes of sovereignty like sovereign immunity, territorial
security, and judicial power. Id. at 96, 99. These are attributes
that non-sovereign foreign governments might lack—for
instance, the Palestinian Authority lacks power to secure its
territory against external threats. See Oslo II, art. X, 36 I.L.M.
at 561. Thus, in Price, we compared foreign states and States
of the Union not as run-of-the-mill entities, or even just as
governments, but rather as sovereigns.
Ignoring the underlying premise that States of the Union
and foreign states are both sovereigns, the appellants instead
focus on a different aspect of Price’s comparison of the two.
They note that Price described foreign states, unlike States of
the Union, as “alien to our constitutional system,” 294 F.3d at
96, and argue that Price’s rule for foreign states must also
apply to non-sovereign foreign governments because they are
also “alien.”
That is wrong several times over. For one, we have already
rejected the notion that “alien” entities are disqualified from
due-process protection. “Both the Supreme Court and this
court have repeatedly held that foreign corporations may
invoke due process protections to challenge the exercise of
personal jurisdiction over them,” even though those entities are
“just as ‘alien to our constitutional system’ as the Libyan
government was in Price.” GSS, 680 F.3d at 813 (quoting
Price, 294 F.3d at 96). Furthermore, “alien” status became
relevant in Price only after we began comparing foreign states
10
to States of the Union. Once we recognized that foreign states
were comparable to States of the Union in that both are
sovereign, we considered whether there was any “compelling
reason to treat foreign sovereigns more favorably.” 294 F.3d at
96. Because foreign states are “alien to our constitutional
system” while the States are “integral” to the “Constitution’s
infrastructure,” we found implausible the notion that the
Constitution would treat foreign states more favorably. Id. But
for entities that are not sovereign, the initial analogy to States
of the Union never gets off the ground; whether they are
“alien” does not matter.
Price’s second rationale, that international mechanisms
displace domestic law for foreign states, also does not work for
non-sovereign entities. Comity and international law “set the
terms by which sovereigns relate to one another.” Id. at 98
(emphasis added). By contrast, an entity that is not the
“juridical equal” of the United States—such as a
non-sovereign—lacks the “panoply of mechanisms in the
international arena” that a sovereign state like Libya can use to
resolve disputes with the United States. Id. Significantly, direct
dispute-resolution mechanisms are generally available only to
entities that are juridical equals in the eyes of the United States,
because political recognition “is a precondition of regular
diplomatic relations.” Zivotofsky v. Kerry, 135 S. Ct. 2076,
2084 (2015). Moreover, further underscoring that Price’s
rationale depends on sovereignty, the United States recognizes
special privileges, based on comity and international-law
principles, for sovereigns alone. See, e.g., Banco Nacional de
Cuba v. Sabbatino, 376 U.S. 398, 408-09 (1964) (“Under
principles of comity governing this country’s relations with
other nations, sovereign states are allowed to sue in the courts
of the United States.”); id. at 401 (describing the “act of state
doctrine,” which “precludes the courts of this country from
inquiring into the validity of the public acts a recognized
11
foreign sovereign power committed within its own territory”);
F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155,
164 (2004) (“[T]his Court ordinarily construes ambiguous
statutes to avoid unreasonable interference with the sovereign
authority of other nations.”); cf. Foreign Sovereign Immunities
Act, 28 U.S.C. §§ 1602 et seq.
To be sure, even non-sovereigns can participate in some
forms of international relations. But that participation is
limited. See 1 OPPENHEIM’S INTERNATIONAL LAW § 35 (9th ed.
2008) (recognizing that “there is no doubt” that non-sovereign
entities “cannot be full, perfect, and normal subjects of
international law”); JAMES CRAWFORD, BROWNLIE’S
PRINCIPLES OF PUBLIC INTERNATIONAL LAW 448 (8th ed. 2012)
(explaining that “sovereignty” includes a state’s “capacity to
act on the international plane, representing that territory and its
people”); LOUIS HENKIN ET AL., INTERNATIONAL LAW 241-42
(3d ed. 1993) (“[D]espite the dogma that only sovereign states
could be subjects of international law, many other entities” can
be “regarded as international legal persons for certain purposes
and in some respects,” but “these developments should not
obscure the primary and predominant role of the state as the
subject of international law.” (emphasis added)). Because they
lack the full range of rights and obligations that sovereigns
have under international law, non-sovereigns—unlike the
defendant in Price—cannot rely on comity and
international-law protections to the exclusion of domestic law.
Finally, Price’s concern that recognizing due-process
rights might pose “practical problems,” 294 F.3d at 99, does
not change our conclusion that Price’s holding applies to
sovereigns alone. The appellants argue that problems might
arise if non-sovereigns raised due-process challenges to
foreign-policy decisions regarding foreign aid, for instance.
But no such problems have arisen thus far, even though courts
12
have assumed that non-sovereign governments have
due-process rights. Cf., e.g., Livnat v. Palestinian Auth., 82 F.
Supp. 3d 19, 26 (D.D.C. 2015) (collecting district-court cases
recognizing the Palestinian Authority’s due-process rights).
And in any event, our decision today does not define the
content of any due-process rights outside the narrow context of
personal jurisdiction.
C
This is not the first time that we have applied
personal-jurisdiction protections under the Due Process Clause
to a non-sovereign foreign government. In Toumazou v.
Turkish Republic of Northern Cyprus, No. 14-7170 (D.C. Cir.
Jan. 15, 2016), an unpublished judgment, plaintiffs invoked
Rule 4(k)(2) to establish personal jurisdiction over the Turkish
Republic of Northern Cyprus (TRNC), a self-declared state
that the United States does not recognize as sovereign, see U.S.
Relations with Cyprus, U.S. DEP’T OF STATE (Sept. 29, 2016),
http://www.state.gov/r/pa/ei/bgn/5376.htm. We did not apply
the rule from Price. Instead, we conducted the usual
due-process inquiry, examining “the defendant’s contacts with
the forum,” and ultimately concluding that personal
jurisdiction was inconsistent with due process. Toumazou, slip
op. at 2 (citing Goodyear Dunlop Tires Operations, S.A. v.
Brown, 131 S. Ct. 2846, 2851 (2011)).
The Second Circuit likewise applies due-process standards
for personal jurisdiction when the defendant is a non-sovereign
foreign government. In Waldman v. Palestine Liberation
Organization, 835 F.3d 317 (2d Cir. 2016), a case substantially
similar to the case before us, the Second Circuit held that the
Palestinian Authority and the Palestine Liberation
Organization are both “persons” under the Fifth Amendment’s
Due Process Clause. Id. at 329. The Second Circuit explained
13
that only “separate sovereigns, recognized by the United States
government as sovereigns,” are foreign states left unprotected
by the Due Process Clause. Id. Both the Palestinian Authority
and the Palestine Liberation Organization remain protected by
the Due Process Clause under that rule, because neither is so
recognized. Id. We agree, at least to the extent that only
sovereign entities are excluded from due-process protection as
foreign states. As explained below, however, while the Second
Circuit uses political recognition as the sole definition of
sovereignty for due-process purposes, we leave open whether
additional considerations could be relevant in future cases.
D
The appellants offer several other arguments why
non-sovereign governments like the Palestinian Authority are
not entitled to due-process protection. None is persuasive.
First, they argue that our decisions in TMR Energy Ltd. v. State
Property Fund of Ukraine, 411 F.3d 296 (D.C. Cir. 2005), and
GSS Group Ltd v. National Port Authority, 680 F.3d 805 (D.C.
Cir. 2012), support their position. Those cases held that
“[w]henever a foreign sovereign controls an instrumentality to
such a degree that a principal-agent relationship arises between
them,” then the instrumentality, like the sovereign, receives no
due-process protection. GSS, 680 F.3d at 815; see also TMR,
411 F.3d at 301. That is, if an instrumentality is sufficiently
close to its government, then the Price rule applies. The
appellants insist that under this principle, the Price rule applies
here too, because the Palestinian Authority “is not merely a
state-owned corporation,” it “is the government.” Appellants’
Br. 21. That is a non sequitur. Whether government
instrumentalities receive the same due-process protection as
their government (the question in TMR and GSS) has nothing
to do with whether a government receives due-process
protection in the first place (the question here).
14
Next, the appellants suggest that other non-sovereign
government entities, such as municipalities, do not receive
due-process protections, demonstrating a general principle that
governments cannot be “persons” under the Due Process
Clause. But the only appellate decision they cite, City of East
St. Louis v. Circuit Court, 986 F.2d 1142 (7th Cir. 1993), is
inapposite. In that case, the Seventh Circuit held that
municipalities are not “persons” under the Due Process
Clauses. See id. at 1144. But the court did not reason, as the
appellants do, that no government can receive due-process
protection. Rather, the court relied on the unrelated principle
that municipalities are creatures of a State and therefore lack
any constitutional rights against the State. See id. (citing Vill. of
Arlington Heights v. Reg’l Transp. Auth., 653 F.2d 1149, 1152
(7th Cir. 1981) (citing City of Newark v. New Jersey, 262 U.S.
192, 196 (1923) (“The city cannot invoke the protection of the
Fourteenth Amendment against the state.”))); see also City of
Trenton v. New Jersey, 262 U.S. 182, 187 (1923) (“[A
municipality is] the creature of the state exercising and holding
powers and privileges subject to the sovereign will.”). 2, 3
Finally, the appellants argue that applying due-process
protections to limit personal jurisdiction in Antiterrorism Act
2
It is not even clear whether political subdivisions of a state
lack due-process rights. See South Dakota v. U.S. Dep’t of Interior,
665 F.3d 986, 990 n.4 (8th Cir. 2012) (describing the circuits as split
on the issue). We take no position on the matter, but simply observe
that the cases that address the issue do not resolve the question here.
3
The appellants also cite a smattering of trial-court cases
denying due-process rights to government entities such as political
subdivisions of states, U.S. territories, and other Palestinian
organizations. None of those cases explains why being a government
would disqualify an entity from the protections of due process.
15
cases would thwart Congress’s intent to provide redress in U.S.
courts for terrorism abroad. But there is no indication that
Congress thought ordinary due-process requirements would
not apply here. And regardless, Congress cannot wish away a
constitutional provision.
* * *
We conclude that Price’s narrow exception to the general
due-process personal-jurisdiction rule applies only to foreign
sovereigns. Here, no party argues that the Palestinian Authority
is sovereign by any definition. Appellants’ Br. 17 (denying the
Palestinian Authority’s sovereignty “in fact, in law, and as
reflected in the official positions of the United States and other
countries”); Appellee’s Br. 20-21 (“[I]t is undisputed that the
PA is not sovereign in the view of the United States.”
(emphasis in original)). 4 Accordingly, Price does not apply,
and therefore the district court had personal jurisdiction over
the Palestinian Authority only if consistent with due-process
limits.
III
Our analysis of constitutional limits on personal
jurisdiction is governed by the Due Process Clause of the Fifth
4
We therefore have no occasion in this case to define the
precise limits of what constitutes a “sovereign” excluded from
personhood under the Due Process Clauses. At the very least, any
such definition must be consistent with Price’s twin rationales,
which are limited to entities that (1) are analogous to States of the
Union, and (2) have recourse to comity and international-law
protections as do “juridical equals” of the United States. In the mine
run of cases, whether the United States recognizes the entity as
sovereign will determine whether those rationales apply. But we do
not attempt to address today the full range of considerations that may
arise on different facts in future cases.
16
Amendment. That is unusual, because most cases in the courts
of the United States concern Federal Rule of Civil Procedure
4(k)(1), which directs courts to determine whether a state court
would have personal jurisdiction, an analysis governed by the
Fourteenth Amendment. But the families assert personal
jurisdiction under Rule 4(k)(2), which examines the federal
court’s jurisdiction, an analysis governed by the Fifth
Amendment.
According to the Livnats, Safras, and amici, the Fifth
Amendment’s Due Process Clause imposes
personal-jurisdiction restrictions that are less protective of
defendants than those imposed by the Fourteenth Amendment.
Therefore, they argue, we should ignore the standards
announced in Daimler AG v. Bauman, 134 S. Ct. 746 (2014),
and other Supreme Court personal-jurisdiction cases decided
under the Fourteenth Amendment. Instead, they urge us simply
to balance the interests favoring and disfavoring jurisdiction.
Under that approach, contacts with the United States that
would be insufficient under the Fourteenth Amendment might
justify personal jurisdiction under the Fifth.
In support of their newly devised theory of the Fifth
Amendment, the Livnats, Safras, and amici argue that the Fifth
Amendment is less concerned with circumscribing the power
of courts than is the Fourteenth Amendment. The Fourteenth
Amendment limits the power of state courts so as to “prevent[]
states from encroaching upon each other’s sovereignty.”
Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distribs.
Pty. Ltd., 647 F.2d 200, 203 n.4 (D.C. Cir. 1981). These
federalism concerns do not apply, however, in the Fifth
Amendment context, because that Amendment limits only the
federal government, not the states. Accordingly, Fifth
Amendment jurisdictional limits should be more
permissive—or so the argument goes.
17
That argument buckles under the weight of precedent. No
court has ever held that the Fifth Amendment permits personal
jurisdiction without the same “minimum contacts” with the
United States as the Fourteenth Amendment requires with
respect to States. To the contrary, both the Supreme Court and
this court have applied Fourteenth Amendment
personal-jurisdiction standards in Fifth Amendment cases. See
Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 620
(1992) (concluding that the Fifth Amendment’s Due Process
Clause did not foreclose personal jurisdiction because the
defendant had “purposefully availed itself of the privilege of
conducting activities within the United States” (alterations
omitted) (quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 475 (1985))); Mwani v. bin Laden, 417 F.3d 1, 11-14
(D.C. Cir. 2005); Gilson v. Republic of Ireland, 682 F.2d 1022,
1028-29 (D.C. Cir. 1982). To be sure, neither the Supreme
Court nor this court has expressly analyzed whether the Fifth
and Fourteenth Amendment standards differ. But the Second,
Sixth, Seventh, Eleventh, and Federal Circuits have, and all
agree that there is no meaningful difference in the level of
contacts required for personal jurisdiction. 5 The only
5
See Waldman, 835 F.3d at 330 (“[The Second Circuit’s]
precedents clearly establish the congruence of due process analysis
under both the Fourteenth and Fifth Amendments.”); Carrier Corp.
v. Outokumpu Oyj, 673 F.3d 430, 449 (6th Cir. 2012) (holding that
the Fifth Amendment personal-jurisdiction analysis “parallels” the
Fourteenth Amendment analysis); Abelesz v. OTP Bank, 692 F.3d
638, 660 (7th Cir. 2012) (finding “no merit” in the argument that
invoking the Fifth Amendment “relaxes the minimum-contacts
inquiry”); Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210,
1219 n.25 (11th Cir. 2009) (using Fourteenth Amendment cases to
“guide” the Fifth Amendment personal-jurisdiction analysis because
“the language and policy considerations of [the two clauses] are
virtually identical”); Deprenyl Animal Health, Inc. v. Univ. of
Toronto Innovations Found., 297 F.3d 1343, 1350 (Fed. Cir. 2002)
18
difference in the personal-jurisdiction analysis under the two
Amendments is the scope of relevant contacts: Under the
Fourteenth Amendment, which defines the reach of state
courts, the relevant contacts are state-specific. Under the Fifth
Amendment, which defines the reach of federal courts,
contacts with the United States as a whole are relevant. 6 That
difference is not at play in this case.
The justifications offered by the Livnats, Safras, and amici
for their novel theory do not persuade us to depart from this
uniform precedent. They observe that Fifth Amendment
personal-jurisdiction standards do not safeguard federalism
like Fourteenth Amendment standards do. But personal
jurisdiction is not just about federalism. A “vital” purpose of
personal-jurisdiction standards is to “ensure[] fairness to the
defendant.” Stabilisierungsfonds Fur Wein, 647 F.2d at 203
(“Although it was developed in the context of the due process clause
of the Fourteenth Amendment, we apply the standard articulated in
International Shoe Co. v. Washington, 326 U.S. 310 (1945), and its
progeny to Fifth Amendment due process cases . . . .”).
6
Some courts have also suggested that under the Fifth
Amendment, even if the defendant has sufficient nationwide
contacts, a plaintiff must additionally justify jurisdiction in the
particular state. See, e.g., Peay v. BellSouth Med. Assistance Plan,
205 F.3d 1206, 1211 (10th Cir. 2000) (“[D]ue process requires
something more” than permitting jurisdiction “as long as
[defendants] have minimum contacts with the United States as a
whole.”); Republic of Panama v. BCCI Holdings (Lux.) S.A., 119
F.3d 935, 947 (11th Cir. 1997) (“[E]ven when a defendant resides
within the United States, courts must ensure that requiring a
defendant to litigate in plaintiff’s chosen forum is not
unconstitutionally burdensome.”). Because we hold that, for
purposes of this case, the Palestinian Authority lacks minimum
contacts with the United States as a whole, we express no view on
that issue.
19
n.4. Another purpose is to protect “the sovereign concerns of
other nations” whose courts might otherwise adjudicate the
claims. Id.; see also Daimler, 134 S. Ct. at 763 (warning that
courts should consider “risks to international comity” before
extending jurisdiction). Those considerations weigh at least as
heavily in the Fifth Amendment context. In federal and state
courts alike, defendants should face suit only under fair
circumstances. And just as Fourteenth Amendment
personal-jurisdiction standards in many cases govern state
courts’ power relative to other states’ courts (thus raising
federalism concerns), Fifth Amendment standards often
govern federal courts’ power relative to other nations’ courts,
bringing international-comity concerns to the fore. Because
strong justifications for personal-jurisdiction limits apply
equally in Fifth Amendment cases, we decline to devise new
standards for those cases that are less stringent than those under
the Fourteenth Amendment.
Applying consistent personal-jurisdiction standards under
the Fifth and Fourteenth Amendments is also easier to
administer. Jurisdictional rules should be “‘[s]imple,’” “easily
ascertainable,” and “‘predictab[le].’” Daimler, 134 S. Ct. at
760 (quoting Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)). It
is hardly clear what separate Fifth Amendment
personal-jurisdiction standards would consist of, and how
exactly they would differ from Fourteenth Amendment
standards. Without any compelling justification for developing
a new personal-jurisdiction doctrine, we decline to send courts
and litigants on that journey.
Finally, we disagree that applying the usual
personal-jurisdiction doctrine in Fifth Amendment cases will,
as the Livnats, Safras, and amici suggest, threaten
extraterritorial law enforcement. This case concerns personal
jurisdiction in civil cases alone; we do not address Congress’s
20
power to legislate extraterritorially or the personal jurisdiction
the federal courts have over criminal defendants. Moreover,
our holding merely adheres to the status quo of
personal-jurisdiction doctrine; we do not diminish any
law-enforcement tools that currently exist. In any event,
although congressional interests may be relevant to whether
personal jurisdiction comports with due-process standards, cf.
Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113
(1987) (directing courts to “consider . . . the interests of the
forum” as part of the inquiry into “the reasonableness of the
exercise of jurisdiction”), they cannot change the standards
themselves.
IV
Under the usual due-process standards, the appellants fail
to establish personal jurisdiction over the Palestinian Authority
in these cases. There are two types of personal jurisdiction,
either of which can suffice. The first, general jurisdiction,
“permits a court to assert jurisdiction over a defendant based on
a forum connection unrelated to the underlying suit.” Walden
v. Fiore, 134 S. Ct. 1115, 1121 n.6 (2014). Due process permits
general jurisdiction based on “only a limited set of affiliations
with a forum,” all analogous to an individual’s domicile.
Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014). For
example, the “equivalent place” to a domicile for a
corporation—“one in which the corporation is fairly regarded
as at home”—can be the place of incorporation or the principal
place of business. Id. (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853-54 (2011)).
The appellants do not argue that the Palestinian Authority
may be “fairly regarded as at home” in the United States, and
for good reason. Its headquarters, officials, and primary
activities are all in the West Bank. The Palestinian Authority is
21
therefore not subject to general jurisdiction in the United
States.
The second type of personal jurisdiction, specific
jurisdiction, requires an “affiliation between the forum and the
underlying controversy.” Walden, 134 S. Ct. at 1121 n.6
(alteration omitted) (quoting Goodyear, 131 S. Ct. at 2851).
The appellants’ theory of specific jurisdiction is that the attack
at Joseph’s Tomb was “part of” the “policy and practice” of the
Palestinian Authority to “us[e] terrorism to influence United
States public opinion and policy,” of a piece with the
Palestinian Authority’s lobbying and fundraising activities
inside the United States. Appellants’ Br. 45.
We need not reach the legal sufficiency of this theory,
because the appellants failed to “make a prima facie showing
of the pertinent jurisdictional facts” to survive a motion to
dismiss for lack of personal jurisdiction. First Chicago Int’l v.
United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988).
“Conclusory statements” or a “bare allegation of conspiracy or
agency” do not satisfy this burden. Id. at 1378-79 (citation
omitted). When deciding personal jurisdiction without an
evidentiary hearing—as here—the “court must resolve factual
disputes in favor of the plaintiff,” Helmer v. Doletskaya, 393
F.3d 201, 209 (D.C. Cir. 2004), but it “need not accept
inferences drawn by plaintiffs if such inferences are
unsupported by the facts,” id. (quoting Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).
In their complaints, the families allege that the attack was
“part and parcel of” the Palestinian Authority’s “general
practice of using terrorism to influence United States public
opinion and policy” and was “intended, through intimidation
and coercion, to influence the Israeli and United States
government’s policies.” Compl. at 5, 16, Livnat v. Palestinian
22
Auth., No. 1:14-cv-00668 (D.D.C. Apr. 21, 2014); Compl. at 3,
14, Safra v. Palestinian Auth., No. 1:14-cv-00669 (D.D.C.
Apr. 21, 2014). But those assertions are conclusory. They
merely state the plaintiffs’ theory of specific jurisdiction. The
Livnats and Safras presented a declaration from a professor
asserting that the Palestinian Authority encourages terrorism
against Jews and Israelis in order to influence U.S. policy in the
Palestinian Authority’s favor. Even if true, that evidence
establishes no link between that practice and the Joseph’s
Tomb attack. Indeed, the declaration does not even mention the
attack. The families do no more than infer that because some
attacks against Jews and Israelis have been aimed to influence
U.S. policy, the Joseph’s Tomb attack was, too. The record
before us does not support that inference. The appellants
therefore have not carried their burden to show specific
personal jurisdiction. 7
Finally, the appellants argue in the alternative that the
district court should have permitted jurisdictional discovery.
We review denials of jurisdictional discovery for abuse of
discretion. FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087,
1091 (D.C. Cir. 2008). A district court acts well within its
discretion to deny discovery when no “facts additional
discovery could produce . . . would affect [the] jurisdictional
analysis.” Goodman Holdings v. Rafidain Bank, 26 F.3d 1143,
1147 (D.C. Cir. 1994).
7
The appellants also argue that the district court should have
deferred its resolution of disputed issues of jurisdictional facts to the
merits stage of the litigation. Appellants’ Br. 54. We do not reach
that argument, however, because we conclude that their evidence,
standing alone, does not make a prima facie showing of their
personal-jurisdiction theory. They therefore failed to carry their
burden regardless of any factual dispute the Palestinian Authority
raises.
23
The district court did not abuse its discretion here, because
the additional discovery requested by the appellants would not
change our analysis. As to general jurisdiction, the appellants
do not even claim that they meet Daimler’s “at home” test. As
to specific jurisdiction, they failed to link this particular attack
to the alleged plan to influence opinion and policy in the
United States. But the additional discovery is not directed at
that defect. None of the additional facts that the families seek
relate to the attack at Joseph’s Tomb. Instead, their requested
discovery concerns only the Palestinian Authority’s general
political and financial activities in the United States, such as its
lobbying contracts and U.S. investments. See Appellants’ Br.
56-57. We do not see how any of that information would cure
the appellants’ failure to tie their jurisdictional theory to the
attack at Joseph’s Tomb with specific facts.
V
The Livnats and Safras failed to carry their burden of
demonstrating that personal jurisdiction over the Palestinian
Authority in this case would meet the requirements of the Fifth
Amendment’s Due Process Clause. We therefore affirm both
the district court’s denial of the Livnats’ and Safras’ motions
for jurisdictional discovery and its grant of the Palestinian
Authority’s motions to dismiss for lack of personal
jurisdiction.
So ordered.