Shabtai Shatsky v. Palestine Liberation Organization

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 2019 Decided April 14, 2020
No. 17-7168
SHABTAI SCOTT SHATSKY, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF KEREN SHATSKY, ET AL.,
APPELLANTS
v.
PALESTINE LIBERATION ORGANIZATION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:02-cv-02280)
Tejinder Singh argued the cause for appellants. With him
on the briefs were Charles H. Davis, Robert Joseph Tolchin,
and Meir Katz.
Mitchell R. Berger argued the cause for appellees. With
him on the brief were Gassan A. Baloul, Amy B. Doolittle,
Alexandra E. Chopin, and Aaron W. Knights.
Before: HENDERSON, MILLETT, and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
2
MILLETT, Circuit Judge: The American victims of a 2002
suicide bombing in the West Bank and their families
(collectively, “the Families”) brought this suit under the Anti-
Terrorism Act, 18 U.S.C. §§ 2331 et seq., against two entities
that they believe are among those responsible for the attack.
Specifically, the Families allege that the Popular Front for the
Liberation of Palestine (“Popular Front”), a designated foreign
terrorist organization, orchestrated the 2002 bombing. See
Families’ Response to Palestinian Defendants’ Statement of
Material Facts at ¶¶ 1–13, Shatsky v. Palestine Liberation Org.,
No. 1:02-cv-02280-RJL (D.D.C. Jan. 29, 2016), ECF No. 331
at 59–65. In this case, the Families seek to hold the Palestinian
Authority and the Palestine Liberation Organization
(collectively, “the Palestinian Defendants”) liable for the attack
on the theory that they enabled the bombing through their
provision of significant support to the Popular Front.
As described in the complaint, the harms suffered by the
Families as a result of the bombing are tragic and horrific. This
case, though, turns not on the merits of their claims for
remediation, but on the narrow question of where those claims
should be litigated. We hold that the district court erred in
rejecting the Palestinian Defendants’ argument that the court
lacked personal jurisdiction. We therefore vacate the district
court’s judgment and remand for it to dismiss the case without
prejudice.
I
A
On February 16, 2002, a suicide bomber attacked a
pizzeria in Karnei Shomron, a town in the West Bank. The
bombing killed United States citizens Keren Shatsky and
Rachel Thaler and wounded United States citizens Steven
Braun, Chana Friedman, Leor Thaler, and Hillel Trattner, along
3
with a non-citizen, Ronit Trattner. For the purpose of summary
judgment only, the parties agree that the bomber was Sadeq
Ahed Mahmoud Abdel Hafez. Palestinian Defendants’
Response to Families’ Reconstituted Statement of Purported
Material Facts at ¶ 5, Shatsky, No. 1:02-cv-02280-RJL (D.D.C.
March 2, 2016), ECF No. 332-1; Families’ Response to
Palestinian Defendants’ Statement of Material Facts, supra, at
¶ 5, ECF No. 331 at 61.
In November 2002, the Shatsky family, Steven Braun, and
the other bombing survivors and their families filed suit against
(i) the Palestinian Defendants, (ii) Syria and several Syrian
governmental entities and individuals (“Syrian Defendants”),
and (iii) 99 Doe defendants. The Families asserted claims
under the Anti-Terrorism Act, which authorizes “[a]ny national
of the United States injured in his or her person, property, or
business by reason of an act of international terrorism, or his or
her estate, survivors, or heirs,” to sue for treble damages “in
any appropriate district court of the United States[,]” 18 U.S.C.
§ 2333(a).
The Palestinian Authority is a government established
following the 1993 Oslo Accords between Israel and the
Palestine Liberation Organization. See Livnat v. Palestinian
Auth., 851 F.3d 45, 47 (D.C. Cir. 2017). The Authority is
headquartered in the West Bank and provides civilian and
internal security services in parts of the West Bank and Gaza
Strip. Id. The Palestine Liberation Organization, commonly
known as the “PLO,” is the international representative of the
Palestinian people. Families’ Response to Palestinian
Defendants’ Statement of Material Facts, supra, at 18, ECF
No. 331 at 76.
The Popular Front is one of the seven “factions” that make
up the PLO. J.A. 89. The United States government has
4
designated the Popular Front a foreign terrorist organization.
See 8 U.S.C. § 1189; see also Designation of Foreign Terrorist
Organizations, 62 Fed. Reg. 52,650, 52,650 (Oct. 8, 1997)
(original designation); In re Review of the Designation of
Popular Front for the Liberation of Palestine (and Other
Aliases) as a Foreign Terrorist Organization, 80 Fed. Reg.
25,766, 25,766 (May 5, 2015) (maintaining the designation).
The Families allege that the Popular Front planned and
carried out the bombing. They contend that the Palestinian
Defendants facilitated the bombing by providing financial
support to the Popular Front. Specifically, they accuse the
Palestinian Defendants of (i) paying the alleged mastermind,
Ra’ed Nazal, a salary for a no-show job; (ii) covering some of
the Popular Front’s necessary expenses, including rent for its
office in the nearby city Qalqilya, and (iii) providing what the
Families call “martyr payments” to Nazal’s and Hafez’s
families after their deaths. See Families’ Br. 27–28.
B
1
Due to a number of procedural complexities, this case
wended its way through district court for fifteen years. The
case started when the Families filed their complaint in
November 2002 and served the Palestinian Defendants in July
2003.
Two months later, the Syrian Defendants and the
Palestinian Defendants jointly moved for a protective order to
prevent the Families from moving forward with depositions
before the defendants’ “sovereign and governmental
immunity[] and other defenses” could be litigated.
Defendants’ Motion for Protective Order at 1–2, Shatsky,
No. 1:02-cv-02280-RJL (D.D.C. Sept. 11. 2003), ECF No. 14.
5
That same day, the Clerk of the Court entered a default against
the Palestinian Defendants under Federal Rule of Civil
Procedure 55(a) because they had not responded to the
complaint by what the Families asserted was the deadline. By
way of explanation, Rule 55(a) requires the Clerk to enter a
default when a defendant “has failed to plead or otherwise
defend, and that failure is shown by affidavit or otherwise[.]”
FED. R. CIV. P. 55(a). Once the Clerk does so, the plaintiff may
“apply to the court for a default judgment” under Rule 55(b).
FED. R. CIV. P. 55(b)(2).
The Palestinian Defendants then moved to strike that
default and requested additional time to respond to the
complaint. While those motions were still pending, the
Palestinian Defendants moved to dismiss the complaint under
Federal Rule of Civil Procedure 12(b), asserting among other
things sovereign and governmental immunity and lack of
personal jurisdiction. As for personal jurisdiction, the
Palestinian Defendants argued that they lacked the minimum
contacts with the United States that the Due Process Clause
requires. They explained that their only contacts with the
United States were the activities of Palestine’s Mission to the
United Nations and its ambassador in New York. The
Palestinian Defendants argued that those diplomatic contacts
were “government contacts” that could not provide a basis for
personal jurisdiction. J.A. 147–148.
On June 23, 2004, the district court entered minute orders
granting the motions for a protective order and to strike the
entry of default.
Eight months later, the district court denied the Palestinian
Defendants’ motion to dismiss in a minute order that provided
no reasoning. At a status hearing the next month, the
Palestinian Defendants requested an explanation, but the
6
district court declined to provide one. The Palestinian
Defendants then informed the court that they planned to rest
their defense entirely on jurisdiction and were contemplating
an interlocutory appeal.
The Palestinian Defendants, however, never took an
interlocutory appeal. After the Palestinian Defendants failed to
file an answer or otherwise participate in the litigation, the
Clerk of the Court entered a second default against them on
April 12, 2005.
The next month, the Families voluntarily dismissed their
claims against the Syrian Defendants without prejudice.1
On January 31, 2006, the Palestinian Defendants informed
the district court that they had new political leadership and
sought a stay until May 1, 2006 to allow the new government
to decide how to handle the litigation. The district court denied
the motion as moot in a May 30, 2006 minute order.
Almost a year later, the Families asked the court to enter a
default judgment against the Palestinian Defendants under
Federal Rule of Civil Procedure 55(b). In their brief opposing
the motion, the Palestinian Defendants reasserted their personal
jurisdiction argument: “For the reasons presented in their
Motion to Dismiss and supporting memorandum, the
[Palestinian Defendants] continue to contend that they have
insufficient contacts with the United States to warrant the
Court’s exercise of personal jurisdiction over them and reserve
that issue.” J.A. 161 (citation omitted).
1
A plaintiff may “dismiss an action without a court order by
filing * * * a notice of dismissal” so long as the opposing party has
not yet “serve[d] either an answer or a motion for summary
judgment[.]” FED. R. CIV. P. 41(a)(1)(A)(i).
7
2
The Palestinian Defendants tried a new approach in
December 2007. They moved to vacate the Clerk’s entry of
default, emphasizing that they were now “committed to
litigating the case on the merits.” J.A. 182 (formatting
modified). The Palestinian Defendants explained that, earlier
in the litigation, they “might rightly have wondered why they
would be haled into U.S. courts to litigate claims” that arose
abroad “against the backdrop of the Palestinian–Israeli
conflict.” J.A. 183. But they told the court that they “ha[d]
come to appreciate that they need to address these cases head
on, rather than continuing to rely exclusively on jurisdictional
defenses.” J.A. 183.
At the same time, the Palestinian Defendants filed an
answer that both responded to the merits of the complaint’s
allegations and, as relevant here, raised lack of personal
jurisdiction as an affirmative defense. The Palestinian
Defendants’ brief in support of vacating the default “confined
their discussion” of the “meritorious defense” requirement for
vacatur “to [the Palestinian Defendants’] lack of
responsibility” for the bombing. J.A. 205–206. But the
Palestinian Defendants also were explicit that, in focusing their
argument on the merits, they did not “waiv[e] any of the
defenses raised in the verified answer[.]” J.A. 205.
Three and a half years later, the district court granted the
Palestinian Defendants’ motion and vacated the default.
Shatsky v. Syrian Arab Republic, 795 F. Supp. 2d 79, 81
(D.D.C. 2011). Although the court found the default willful—
in large part because the Palestinian Defendants’ previous
counsel had represented that they “only intended to litigate
jurisdiction and nothing more”—the court was “now convinced
that [the Palestinian Defendants are] truly committed to
8
litigating this matter.” Id. at 82–83. Because of that, the
district court concluded that the Palestinian Defendants’
“willfulness alone does not, on balance, preclude vacatur,” and
that other considerations warranted “allow[ing] the parties to
proceed on the merits.” Id. at 83–85.
After nearly two years of discovery, the Palestinian
Defendants moved for summary judgment on the merits in
August 2013. They did not raise personal jurisdiction as an
additional ground for summary judgment.
While that motion was pending, the Supreme Court
decided Daimler AG v. Bauman, 571 U.S. 117 (2014). That
case held that a court may exercise general jurisdiction over a
nonresident corporation only if the corporation is “essentially
at home in the forum.” Id. at 138–139. Absent exceptional
circumstances, that standard is met only in the corporation’s
“formal place of incorporation or principal place of
business[.]” Id. at 139 n.19.
Based on Daimler, the Palestinian Defendants promptly
moved for reconsideration of the district court’s earlier denial
of their motion to dismiss for lack of personal jurisdiction. The
district court denied reconsideration solely on the ground that
the Palestinian Defendants had “repeatedly manifested their
consent to the Court’s jurisdiction through their conduct,” and
so had forfeited their personal jurisdiction objection. J.A. 300–
301. The district court stressed that, in seeking vacatur of the
default, the Palestinian Defendants had “informed [the] Court
of their ‘seriousness’ and the ‘good faith’ with which they
intended to litigate their ‘strong meritorious defenses.’”
J.A. 301 (quoting Memorandum in Support of Palestinian
Defendants’ Motion to Vacate Clerk’s Entry of Default at 5,
J.A. 176; and quoting id. at 40, J.A. 211). The district court
added that, although their answer “purportedly preserved the
9
personal jurisdiction defense,” the Palestinian Defendants’
August 2013 summary judgment motion did not “includ[e] a
challenge to personal jurisdiction[.]” J.A. 301. The district
court subsequently denied reconsideration of that ruling.
In September 2016, the Palestinian Defendants again
pressed their personal jurisdiction defense, arguing in a
supplemental brief in support of summary judgment that the
court should reconsider its forfeiture determination in light of
Waldman v. Palestine Liberation Organization, 835 F.3d 317(2d Cir. 2016).
The district court subsequently granted summary
judgment for the Palestinian Defendants. Shatsky v. Palestine
Liberation Org., No. 1:02-cv-02280-RJL, 2017 WL 2666111,
at *11 (D.D.C. June 20, 2017). The court first denied
reconsideration of its finding of personal jurisdiction. Id. at
*5–6. The court distinguished Waldman as turning on a change
in Second Circuit law that made available in that circuit a new
argument against personal jurisdiction. Id. at *5. The court
held that, by contrast, the argument pressed by the Palestinian
Defendants had been available to them all along, and so was
forfeitable. Id.On the merits, the court held that the Palestinian
Defendants were entitled to summary judgment on the Anti-
Terrorism Act claims because no reasonable jury could find
that they had proximately caused the bombing. Shatsky, 2017
WL 2666111, at *6–10.2
2
The district court also granted summary judgment on the
Families’ common law tort claims, reasoning that under District of
Columbia law, the Palestinian Authority and the PLO were each
unincorporated associations that could not be sued in tort. Shatsky,
10
The Families timely moved for reconsideration under
Federal Rule of Civil Procedure 59(e), which the district court
denied. Shatsky v. Palestine Liberation Org., 292 F. Supp. 3d
188, 192, 195 (D.D.C. 2017).
The Families timely filed a notice of appeal. FED. R. APP.
P. 4(a)(1)(A), (4)(A)(iv). The Palestinian Defendants did not
file a cross-appeal.
II
We first confront the question whether the district court’s
grant of summary judgment to the Palestinian Defendants
constitutes a final, appealable judgment despite the Families’
earlier decision to voluntarily dismiss their claims against the
Syrian Defendants without prejudice. Because the Families
were not attempting to circumvent the statutory limitation on
jurisdiction and because the district court remained in full
control over the litigation’s progress to the dispositive entry of
summary judgment, we hold that the district court’s ruling is
an appealable final judgment.
A
The district court exercised federal question jurisdiction
over the Anti-Terrorism Act claims and supplemental
jurisdiction over the non-federal common law claims. See 28
U.S.C. § 1331 (federal question); id. § 1367(a) (supplemental).
Under 28 U.S.C. § 1291, we have jurisdiction to review
“final decisions” of the district courts. The district court’s
grant of summary judgment in favor of the Palestinian
Defendants would certainly be final had they been the only
2017 WL 2666111, at *10–11. The Families do not appeal that
portion of the district court’s decision.
11
defendants all along. But the complaint also seeks relief from
nine Syrian Defendants. In 2005, twelve years before the
summary judgment ruling in favor of the Palestinian
Defendants, the Families voluntarily dismissed the claims in
their complaint against the Syrian Defendants. The question,
then, is whether that voluntary dismissal rendered the district
court’s summary judgment order non-final. It did not.
A decision is final when it “ends the litigation on the merits
and leaves nothing for the court to do but execute the
judgment.” Blue v. District of Columbia Pub. Sch., 764 F.3d
11, 15 (D.C. Cir. 2014) (quoting Van Cauwenberghe v. Biard,
486 U.S. 517, 521–522 (1988)). By contrast, a decision that
“resolves some, but not all, of the claims in a complaint * * *
is generally non-final and non-appealable.” Dukore v. District
of Columbia, 799 F.3d 1137, 1140 (D.C. Cir. 2015). With a
handful of exceptions not relevant here, a party may appeal
such a partial disposition only with the district court’s
permission, pursuant to Federal Rule of Civil Procedure 54(b).
See Dukore, 799 F.3d at 1140.
In Blue, we held that, when a district court enters a partial
final judgment as to some but not all parties, a would-be
appellant cannot concoct finality by agreeing with the
remaining defendants to dismiss the claims against them
without prejudice, subject to an agreement that would allow
revival of those claims after the appeal. 764 F.3d at 14–15. As
a result, “party-initiated” dismissals without prejudice are
“generally insufficient to render final and appealable a prior
order disposing of only part of the case.” Id. at 16–17. That
prevents parties from “taking over the ‘dispatcher’ function
that [Rule 54(b)] vests in the trial judge to control the
circumstances and timing of the entry of final judgment.” Blue,
764 F.3d at 18 (quoting Robinson–Reeder v. American Council
on Educ., 571 F.3d 1333, 1340 (D.C. Cir. 2009)). And
12
allowing parties to create their own superficial finality could
“generate overlapping lawsuits, piecemeal appeals, and
splintered and harassing litigation.” Blue, 764 F.3d at 18.
Put simply, “[p]arties cannot stipulate their way out of the
final judgment rule or Rule 54(b)’s strict limitations.” Dukore,
799 F.3d at 1141. It is the “district court, not the parties,” that
must “control[] the terms of dismissal” so as to prevent
“manipulation of the courts’ jurisdiction.” Id.
The grant of summary judgment to the Palestinian
Defendants in this case was a final, appealable judgment
because the earlier dismissal of the Syrian Defendants was
neither designed to nor had the effect when entered of turning
a partial judgment into an artificially final judgment for appeal.
Quite the opposite, dismissal of the Syrian Defendants
occurred twelve years before summary judgment issued. So
the voluntary dismissal plainly did not foreseeably operate to
render that long-into-the-future partial judgment final. Nor
was the voluntary dismissal meant to open the door to an
appeal. Instead, its sole function was to allow for entry of a
default judgment in favor of the Families. J.A. 158. Which the
Families, of course, would not be appealing.
Also unlike Blue, the voluntary dismissal did not wrest
control of the litigation’s finality out of the district court’s
hands. The Families filed two new lawsuits against the Syrian
Defendants, alleging material support of terrorism under the
Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 et seq.
See Shatsky v. Syrian Arab Republic, No. 1:06-cv-00724-RJL
(D.D.C.); Shatsky v. Syrian Arab Republic, No. 1:08-cv-00496-
RJL (D.D.C). Both cases were assigned to the same district
judge who presided over this ligation against the Palestinian
Defendants. Importantly, the district court has remained in
control of all three cases’ management and progress, eventually
13
deciding to put the lawsuits against the Syrian Defendants on
hold pending disposition of this case. J.A. 284–285. So the
district court has had the full authority to keep the cases linked
if it desired. Instead, the district court exercised its broad
discretion to keep the cases separate, and to make the case
against the Palestinian Defendants the lead one.
The district court’s intent to conclusively resolve the
litigation is also a “significant factor in the [finality] analysis.”
Attias v. Carefirst, Inc., 865 F.3d 620, 624 (D.C. Cir. 2017).
Here, the district court signaled that its summary judgment
order was final and appealable—and need not await disposition
of the Syrian Defendants’ case—by ordering that “judgment is
entered for the defendants.” J.A. 116. If more were needed,
the district court described the Families’ Rule 59(e) motion to
alter or amend the judgment as seeking “post-judgment
relief[.]” Shatsky, 292 F. Supp. 3d at 192, 195.
What all of that means is that Blue’s fundamental concern
about parties manufacturing superficial finality while hijacking
the district court’s control over final resolution of the litigation
is not a factor in this case. The voluntary dismissal of the
Syrian Defendants neither was intended to nor had the effect of
creating an appealable final judgment. And importantly, the
district court “alone determined when the case was over and its
order became final,” and so “fulfilled its function as
‘gatekeeper for the court of appeals.’” Dukore, 799 F.3d at
1142 (quoting Blue, 764 F.3d at 18).
B
The Palestinian Defendants contend otherwise, arguing
that this case and the claims against the Syrian Defendants are
“a ‘single judicial unit’ for purposes of appellate jurisdiction”
because of their “unified origin and substantial factual and
14
legal overlap[.]” Palestinian Defendants’ Br. 4 (quoting Sears,
Roebuck & Co. v. Mackey, 351 U.S. 427, 438 (1956)).
That argument might work if the district court had
consolidated the cases and “treat[ed] them” such that “they
[became] one case for the purpose of appellate jurisdiction.”
Blackman, 456 F.3d at 174 n.9 (internal quotation marks
omitted). But that is not the path the district court chose. It
chose instead to allow the cases to “retain[] their separate
identities,” id., and to proceed on separate procedural paths.
When that happens in consolidated cases, a judgment as to all
of the claims and parties in one of the cases can be considered
final under Section 1291 despite the consolidation. See id.
Certainly if not all consolidated cases count as a single unit for
determining appellate jurisdiction, then neither should cases
that the district court formally keeps separate.
Nor does the presence of Doe defendants named in the
complaint pose an obstacle to finality. Those defendants were
never served, and there is no indication that the district court
“foresees further proceedings on unresolved claims” against
them. See Kaplan v. Central Bank of the Islamic Republic of
Iran, 896 F.3d 501, 506–507 (D.C. Cir. 2018).
The long and the short of it is that, “[a]bsent appellate
reversal, the federal action [before the district court] is
concluded with nothing left to be done.” Dukore, 799 F.3d at
1141–1142. The judgment is final for purposes of 28 U.S.C.
§ 1291, giving us appellate jurisdiction.
III
Determining the finality of the district court’s judgment
does not end our jurisdictional inquiry. The Palestinian
Defendants argue that the grant of summary judgment can be
affirmed on the ground that the district court lacked personal
15
jurisdiction over them. That question of personal jurisdiction
must be resolved “before reaching the merits[.]” Kaplan, 896
F.3d at 511.
The Families responded to the Palestinian Defendants’
personal jurisdiction argument on the merits, without making
any argument that the issue was not properly before us in the
absence of a cross-appeal. A month later, the Families changed
course, filing a letter under Federal Rule of Appellate
Procedure 28(j) arguing that the absence of a cross-appeal
deprives this court of jurisdiction to consider the Palestinian
Defendants’ personal jurisdiction argument. The Palestinian
Defendants respond that the cross-appeal requirement is not
jurisdictional, and that the Families forfeited their procedural
objection by failing to raise it in their reply brief.
After navigating through the parties’ competing
procedural objections, we hold that the Palestinian Defendants
properly preserved their objection to personal jurisdiction in
district court, and that circuit precedent squarely forecloses the
district court’s exercise of personal jurisdiction.
A
1
Parties who win in the district court may advance
“alternative bases for affirmance” that are properly raised and
supported by the record without filing a cross-appeal, even if
the district court rejected the argument. Crocker v. Piedmont
Aviation, Inc., 49 F.3d 735, 741 (D.C. Cir. 1995); see also
Jennings v. Stephens, 135 S. Ct. 793, 798 (2015) (“An appellee
who does not take a cross-appeal may ‘urge in support of a
decree any matter appearing in the record, although his
argument may involve an attack upon the reasoning of the
lower court.’”) (quoting United States v. American Ry. Express
16
Co., 265 U.S. 425, 435 (1924)); Ark Initiative v. Tidwell, 816
F.3d 119, 127 (D.C. Cir. 2016).
But parties seeking to press arguments that would change
or modify the district court’s judgment to their benefit must
cross-appeal. See Jennings, 135 S. Ct. at 798; see also Singh v.
George Washington Univ. Sch. of Med. & Health Sciences, 508
F.3d 1097, 1099–1100 (D.C. Cir. 2007) (noting that a party
“need not have” cross-appealed because “it sought no change
in the final judgment in its favor”); cf. Northwest Airlines,
Inc. v. County of Kent, 510 U.S. 355, 364 (1994) (“A cross-
petition [for certiorari] is required * * * when the respondent
seeks to alter the judgment below.”).
When, as in this case, the district court rejects a
defendant’s claim that the court lacks personal jurisdiction, but
then rules in the defendant’s favor on the merits, the defendant
generally must take a cross-appeal to preserve the personal
jurisdiction objection. See Spann v. Colonial Village, Inc., 899
F.2d 24, 32–33 (D.C. Cir. 1990). That is so for two reasons.
First, personal jurisdiction is a “forum objection,” and so
can be forfeited “at any stage of a proceeding[,]” including by
failing to challenge the district court’s exercise of jurisdiction
on appeal. Spann, 899 F.2d at 32–33.
Second, if we conclude that the district court lacked
personal jurisdiction, we must vacate—not affirm—its
judgment on the merits. See Lightfoot v. Cendant Mortg.
Corp., 137 S. Ct 553, 562 (2017) (“A court must have the
power to decide the claim before it (subject-matter jurisdiction)
and power over the parties before it (personal jurisdiction)
before it can resolve a case.”); see also FED. R. CIV. P. 41(b)
(providing that a dismissal “for lack of jurisdiction” does not
“operate[] as an adjudication on the merits”).
17
In addition, vacatur tends to “enlarg[e] [the prevailing
party’s] rights” or “lessen[] the rights of [its] adversary[,]”
Jennings, 135 S. Ct. at 798, particularly when the defendant is
a repeat player. Cf. Camreta v. Greene, 563 U.S. 692, 701–703
(2011) (recognizing that a party who prevails on the bottom
line may have enough of a “personal stake” to challenge an
adverse ruling the court made along the way). Vacatur for lack
of jurisdiction would also deprive any unfavorable aspects of
the district court’s decision of preclusive effect. See California
Communities Against Toxics v. EPA, 928 F.3d 1041, 1051–
1052 (D.C. Cir. 2019) (claim and issue preclusion apply only
when the prior case was before “a court of competent
jurisdiction”) (internal quotation marks omitted).
This case illustrates the concern. The Palestinian
Defendants have long argued that they cannot be haled into a
court of the United States to answer the Families’ allegations.
Given the choice between (i) a preclusive determination that
such litigation cannot proceed at all, and (ii) a preclusive
determination that they can be forced to answer in court but
that, as it happens, they are not liable in a particular case, the
Palestinian Defendants have ample reason to prefer and are
more broadly benefited by the former. See Kasap v. Folger
Nolan Fleming & Douglas, Inc., 166 F.3d 1243, 1248 (D.C.
Cir. 1999) (noting that, “under principles of issue preclusion,”
dismissals for lack of jurisdiction have “preclusive effect on the
jurisdictional issue litigated”).
Put another way, affirmance and vacatur both mean that
the Palestinian Defendants owe the Families nothing in this
case. But vacatur would have the added effect of wiping the
district court’s exercise of personal jurisdiction off the books,
while also precluding any repeat of the litigation unless the
jurisdictional situation changes. So vacatur is a modification
18
of the judgment that would provide an added benefit to the
Palestinian Defendants.
The Palestinian Defendants point to Gilmore v.
Palestinian Interim Self-Government Authority, 843 F.3d 958(D.C. Cir. 2016), in which this court addressed a personal
jurisdiction argument as an alternative ground for affirmance
without questioning that description or the lack of a cross-
appeal, see id. at 963–964. But there was no need to address
those issues in Gilmore because we rejected the personal
jurisdiction argument as forfeited. See id.For those reasons, the Palestinian Defendants were
required to file a cross-appeal to preserve their challenge to the
district court’s exercise of personal jurisdiction. But as it turns
out, their failure to do so is not fatal.
2
The cross-appeal rule is “unwritten but longstanding[.]”
Greenlaw v. United States, 554 U.S. 237, 244 (2008). Yet
unlike an original notice of appeal, “a cross-appeal is not a
jurisdictional requirement.” Spann, 899 F.2d at 33. That said,
we will excuse compliance with the cross-appeal rule only in
“exceptional circumstances[.]” Id. at 31–33 (excusing the
defendant’s failure to file a cross-appeal where it “plainly
intended to preserve” its argument, but was reasonably
confused about the timeliness of the plaintiffs’ appeal).
Considering all the circumstances of this case in light of
the purposes of the cross-appeal rule, we conclude that there
are exceptional circumstances warranting our consideration of
the personal jurisdiction issue. The cross-appeal rule protects
two distinct sets of interests: (i) the opposing party’s interests
in notice and an adequate opportunity to brief the issue, and
(ii) the structural interests in a full adversarial presentation of
19
issues designed to unsettle a district court ruling and the finality
of judgments. See Greenlaw, 554 U.S. at 243–244 (describing
the cross-appeal rule as “both informed by, and illustrative of,
the party presentation principle[,]” meaning that courts “rely
on the parties to frame the issues for decision”); id. at 252(noting that the rule serves “the interests of the parties and the
legal system in fair notice and finality”).3 In this case, both
factors weigh in favor of entertaining the Palestinian
Defendants’ personal jurisdiction argument.
First, the Families forfeited any objection based on lack of
notice or prejudice to their interests by addressing the personal
jurisdiction argument on the merits in their reply brief, without
any procedural complaint. They did not raise the cross-appeal
issue until a post-briefing Rule 28(j) letter, which “comes too
late.” Worldwide Moving & Storage, Inc. v. District of
Columbia, 445 F.3d 422, 427 n.7 (D.C. Cir. 2006); see
Williams v. Romarm, SA, 756 F.3d 777, 787 (D.C. Cir. 2014)
(“[T]he 28(j) process should not be employed as a second
opportunity to brief an issue not raised in the initial briefs.”).
Nor have they ever claimed prejudice from the Palestinian
Defendants’ timing.
Second, the structural interests served by the cross-appeal
rule are only weakly implicated here. The rule serves the
court’s interest in a full adversarial presentation of those
arguments that seek to deprive the district court’s judgment of
finality by affording the parties additional opportunities to
make their arguments about the issues relevant to the cross-
appeal. See FED. R. APP. P. 28.1 (providing for higher word
3
See also El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473,
481–482 (1999) (The rule “is meant to protect institutional interests
in the orderly functioning of the judicial system, by putting opposing
parties and appellate courts on notice of the issues to be litigated and
encouraging repose of those that are not.”).
20
limits and a fourth brief in cross-appeal cases); compare FED.
R. APP. P. 32(a)(7)(B) (ordinary briefing format), with FED. R.
APP. P. 28.1(c) & (e)(2) (cross-appeal briefing format).
The additional airing of the issues that the cross-appeal
process enables would not have been helpful here. For starters,
the personal jurisdiction issue was fully litigated in the district
court, both as to the court’s finding of forfeiture and the
underlying merits. The Palestinian Defendants raised the issue
in a motion to dismiss, two motions for reconsideration, and in
supplemental briefing on their summary judgment motion. The
Families responded each time. And although the district court
never reduced its reasoning on the merits to writing, it twice
explained the forfeiture ruling.
The parties also adequately briefed the personal
jurisdiction issue on appeal, again addressing both forfeiture
and the merits.
As for the ultimate merits, there was little for the parties to
say or for this court to resolve. The Families and the
Palestinian Defendants agree that existing circuit precedent
directly controls the result. See Palestinian Defendants’
Br. 19–20, 23–26; Families’ Reply Br. 12 & n.2; see also
Livnat, 851 F.3d at 56–57; Estate of Klieman ex rel. Kesner v.
Palestinian Auth., 923 F.3d 1115, 1123–1126 (D.C. Cir. 2019),
petition for cert. filed, No. 19-741 (U.S. Dec. 5, 2019).
All that is really in dispute is the district court’s forfeiture
ruling. That is the type of “straightforward legal question” that
satisfies the “extraordinary circumstances” requirement when,
as here, “both parties have fully addressed the issue on appeal”
and in district court. Lesesne v. Doe, 712 F.3d 584, 588 (D.C.
Cir. 2013) (internal quotation marks omitted).
21
The interest in finality also has little force in this unique
context, given the parties’ full presentation of the issue before
the district court and that court’s awareness of our decision in
Livnat v. Palestinian Authority, which all agree, in the absence
of forfeiture, dictates a finding of no personal jurisdiction in
this case. For those reasons, this case does not implicate
concerns about sandbagging the district court that would
ordinarily weigh against entertaining a belatedly raised
personal jurisdiction argument. See Peterson v. Highland
Music, Inc., 140 F.3d 1313, 1318 (9th Cir. 1998) (suggesting
that “deliberate, strategic behavior” like “sandbagging” could
justify a finding that a defendant forfeited its objection to
personal jurisdiction). The most that a notice of cross-appeal
would have offered is that the Families would have learned
slightly sooner that one additional component of the
judgment—beyond the 33 orders already identified in their
notice of appeal—was in play.
In sum, the Families forfeited their interest in the cross-
appeal rule; the structural interests that rule ordinarily protects
are near their nadir here; and the parties both agree that the
personal jurisdiction question is controlled by binding circuit
precedent of which the district court was fully aware. For those
reasons, exceptional circumstances excuse the Palestinian
Defendants’ failure to cross-appeal the question of personal
jurisdiction.
B
With the issue properly before us, we review for an abuse
of discretion the district court’s finding that the Palestinian
Defendants forfeited their objection to personal jurisdiction.
See Klieman, 923 F.3d at 1120–1123. “A district court abuses
its discretion when it applies the wrong legal standard or relies
on clearly erroneous findings of fact.” Amador County v.
22
United States Dep’t of the Interior, 772 F.3d 901, 903 (D.C.
Cir. 2014). “A district court by definition abuses its discretion
when it makes an error of law.” Koon v. United States, 518
U.S. 81, 100 (1996). We conclude that the district court abused
its discretion in holding that the Palestinian Defendants
forfeited their objection to the exercise of personal jurisdiction
in this case.
1
While subject-matter jurisdiction is a mandatory
prerequisite for a federal court to act, the requirement that the
court have personal jurisdiction over a defendant is a personal
right that a defendant can choose to assert or not. Insurance
Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 702–704 (1982). That means that a personal
jurisdiction defense is both forfeitable and waivable. Sickle v.
Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 344 (D.C.
Cir. 2018).
A defendant forfeits its objection to personal jurisdiction
unless it raises the issue in a pre-answer Rule 12 motion or in
a responsive pleading. FED. R. CIV. P. 12(h)(1); see also
Gilmore, 843 F.3d at 964. It is undisputed that the Palestinian
Defendants complied with that initial obligation by raising their
personal jurisdiction defense in their pre-answer, pre-default
motion to dismiss.
The question is whether the Palestinian Defendants’
conduct after the entry of default amounted to forfeiture. It did
not.
To be sure, properly raising an objection to personal
jurisdiction at the outset of the case did not immunize the
Palestinian Defendants against later forfeiting that objection by
their conduct. That is because objections to personal
23
jurisdiction “can be waived at any stage of a proceeding.”
Spann, 899 F.2d at 32–33. But simply pleading the absence of
personal jurisdiction is not all that happened here. The
Palestinian Defendants also raised personal jurisdiction in a
motion to dismiss at the outset of the case and litigated it fully
before the district court, which considered and rejected the
personal jurisdiction challenge. And when the Palestinian
Defendants asked for a written explanation of the ruling, the
court denied that too. At that point, nothing in the law required
the Palestinian Defendants to continue beating a dead horse.
Instead, they could turn to “defend[ing] on the merits in the
district court without losing [their] right to press on direct
review the jurisdictional objection, along with objections on
the merits.” Practical Concepts, Inc. v. Republic of Bolivia,
811 F.2d 1543, 1547 (D.C. Cir. 1987).
In other words, once the issue is litigated to resolution in
the district court, a defendant’s pivot to defending on the merits
by itself is an insufficient basis for inferring abandonment of a
personal jurisdiction challenge. Instead, the district court
would need to predicate a finding of forfeiture on specific
actions later taken by the defendant that are inconsistent with
the good-faith preservation of the defense, such as intentional
sandbagging or an express and unambiguous renunciation of
the claim. See Peterson, 140 F.3d at 1317–1319; Brownlow v.
Aman, 740 F.2d 1476, 1483 n.1 (10th Cir. 1984) (holding that
moving to dismiss for lack of personal jurisdiction preserves
the issue for appeal).
In finding forfeiture, the district court trained its analysis
on the Palestinian Defendants’ post-default litigation. The
court emphasized, in particular, the Palestinian Defendants’
representation in seeking vacatur of the default that they were
now committed to litigating the case on the merits. J.A. 301
(“[T]hese defendants, in asking the Court to vacate their
24
intentional default, informed this Court of their ‘seriousness’
and the ‘good faith’ with which they intended to litigate their
‘strong meritorious defenses.’”) (quoting Memorandum in
Support of Palestinian Defendants’ Motion to Vacate Clerk’s
Entry of Default, supra, at 5, J.A. 176; and quoting id. at 40,
J.A. 211). Against that backdrop, the district court reasoned
that defendants who “have participated in litigation for a
lengthy period of time and have sought affirmative relief from
the [c]ourt” have, in so doing, “manifested their consent to the
[c]ourt’s jurisdiction through their conduct,” and have forfeited
their personal jurisdiction defense. J.A. 301.
Applying that rule, the district court concluded that even
though the Palestinian Defendants included personal
jurisdiction as an affirmative defense in their answer, they
abandoned that objection and consented to the court’s
jurisdiction by first seeking vacatur of the default with a
promise to defend on the merits, and then moving for summary
judgment “without including a challenge to personal
jurisdiction” in the motion. J.A. 301.
The district court was correct that a defendant cannot
preserve a personal jurisdiction defense by just raising it in an
answer, proceeding to engage in substantial litigation on the
merits without teeing up the personal jurisdiction issue in a
motion, and then resurrecting the defense only after the case
takes an unfavorable turn on the merits. It would, after all, be
“perverse” to allow defendants to “ask[] the court to proceed
on the merits, and then, only if the court’s decision is
unfavorable, seek[] to re-assert jurisdictional defenses.”
Boulger v. Woods, 917 F.3d 471, 477–478 (6th Cir. 2019).
But what happened procedurally in this case is materially
different. The Palestinian Defendants did more than just flag
personal jurisdiction as a defense in their answer. They
25
properly filed a motion to dismiss on that basis, fully litigated
it, and lost before the district court. The Palestinian Defendants
then followed up with a request that the district court explain
the basis for its minute-order rejection of their personal
jurisdiction defense. Once the district court declined, the
Palestinian Defendants got the clear message that the court was
finished adjudicating that issue.
It was in that specific context that the Palestinian
Defendants shifted at the default stage and “committed to
litigating the case on the merits,” “rather than continuing to rely
exclusively on jurisdictional defenses.” J.A. 182–183
(emphasis added; formatting modified). Hewing to our
decision in Practical Concepts, the Palestinian Defendants
chose not to stand on their jurisdictional objection alone and
default, but instead to defend on the merits, preserving the
already-decided jurisdictional issue for appeal, see 811 F.2d at
1547.
Even still, the Palestinian Defendants took additional steps
to alert the district court and the Families that they maintained
their personal jurisdiction objection. The Palestinian
Defendants included personal jurisdiction as an affirmative
defense in their answer, which was filed along with the motion
to vacate the default. Answer at 2, Shatsky, No. 1:02-cv-
02280-RJL (D.D.C. Dec. 21, 2007), ECF No. 77-10. And the
motion to vacate advised that, while now focused on addressing
the merits, the Palestinian Defendants were not “waiving any
of the defenses raised in the verified answer.” J.A. 205. In
other words, the Palestinian Defendants embraced the agree-
to-disagree approach authorized by Practical Concepts.
Underscoring their efforts to preserve their personal
jurisdiction defense, once the Supreme Court’s decision in
Daimler armed them with favorable intervening authority, the
26
Palestinian Defendants renewed their personal jurisdiction
argument. When they did not prevail in that round, they moved
for reconsideration or authorization of an interlocutory appeal
under 28 U.S.C. § 1292(b).
True, the Palestinian Defendants did not raise personal
jurisdiction in their summary judgment motion. It would have
been better and fairer to the district court and the Families if
they had. But the Palestinian Defendants did request
reconsideration of the personal jurisdiction ruling in their
supplemental summary judgment briefing after a favorable
Second Circuit decision issued, and they had earlier renewed
their objection following the Supreme Court’s decision in
Daimler.
That pattern documents that the Palestinian Defendants
took sufficient steps to preserve their personal jurisdiction
defense. While changing their focus to the merits out of respect
for the apparent definitiveness of the district court’s adverse
ruling, they preserved the argument in their answer and twice
revived the argument when new authority might have justified
revisiting an otherwise settled question.4
The district court read our decision in Democratic
Republic of Congo v. FG Hemisphere Associates, LLC, 508
4
See Aly v. Hanzada for Import & Export Co., 864 F.3d 844,
847–848 (8th Cir. 2017) (after losing motion to dismiss, defendant
preserved personal jurisdiction objection by raising it in its answer,
even though it was omitted from the defendant’s summary judgment
motion); Peterson, 140 F.3d at 1317–1319 (defendants did not forfeit
their personal jurisdiction defense by failing to raise it in a summary
judgment motion, at the close of the plaintiffs’ case at trial, or in a
post-trial motion because the defendants had already moved to
dismiss for lack of personal jurisdiction, lost that motion, and filed
an answer preserving the defense).
27
F.3d 1062 (D.C. Cir. 2007), as holding that personal
jurisdiction is forfeited “where a defendant has engaged in
extensive post-default litigation without suggesting an
infirmity in personal jurisdiction[.]” J.A. 300 (quoting
Democratic Republic of Congo, 508 F.3d at 1064). That is true.
But that case involved a defendant’s failure to raise a personal
jurisdiction objection at all until late in the litigation. As we
explained, “defendants should raise [personal jurisdiction]
before the court’s and parties’ time is consumed in struggle
over the substance of the suit[.]” Id. (emphasis added).
In so holding, Democratic Republic of Congo simply
joined a long line of precedent holding that defendants cannot
raise personal jurisdiction for the very first time after the
litigation is well underway. See Manchester Knitted Fashions,
Inc. v. Amalgamated Cotton Garment & Allied Indus. Fund,
967 F.2d 688, 691–692 (1st Cir. 1992) (defendant litigated a
temporary restraining order for about three months before
contesting venue for the first time in its answer); Trustees of
Central Laborers’ Welfare Fund v. Lowery, 924 F.2d 731, 732
(7th Cir. 1991) (defendants first raised defective service after
six years of post-default judgment proceedings); Marcial Ucin,
S.A. v. SS Galicia, 723 F.2d 994, 997 (1st Cir. 1983) (defendant
appeared, attended thirteen depositions, and then raised its
personal jurisdiction defense for the first time in a motion to
dismiss filed four years after its appearance).
At bottom, the district court misstepped when it analyzed
forfeiture starting at the middle rather than the beginning of the
litigation. That led it to apply the wrong legal standard—one
that applies to defendants who do not raise personal jurisdiction
at all until after extensive litigation. Here, the Palestinian
Defendants’ full litigation of the issue at the outset of the case,
preservation of the defense in their answer, and efforts twice to
28
seek post-default reconsideration of the district court’s adverse
ruling sufficed to preserve the claim.
2
The Families’ three arguments in support of forfeiture fail.
First, the Families argue that the Palestinian Defendants’
personal jurisdiction defense was forfeited because the way
they litigated after the default gave the Families “a reasonable
expectation that [they would] defend the suit on the merits,”
and they “cause[d] the court to go to some effort that would be
wasted if personal jurisdiction is subsequently found lacking.”
Families’ Reply Br. 5 (quoting Hedeen Int’l, LLC v. Zing Toys,
Inc., 811 F.3d 904, 906 (7th Cir. 2016)).
That argument repeats the district court’s error: Courts
that apply the Families’ test or a similar one do so to determine
whether a defendant waited too long to press “the issue by
motion[,]” as opposed to merely pleading it as an affirmative
defense and otherwise standing silent. See King v. Taylor, 694
F.3d 650, 660–661 (6th Cir. 2012) (internal quotation marks
omitted) (defendant forfeited his service defense by including
it in his answer, participating in the litigation for more than a
year, and only then raising it at the summary judgment stage);
see also Boulger, 917 F.3d at 477 (applying the “reasonable
expectation” test where the defendant had pleaded personal
jurisdiction as an affirmative defense but had not raised it in a
motion); Hedeen, 811 F.3d at 906 (addressing the timeliness of
an initial challenge to personal jurisdiction).5
5
See also H-D Michigan, LLC v. Hellenic Duty Free Shops S.A.,
694 F.3d 827, 848 (7th Cir. 2012) (“[A] party may appear and litigate
both a personal jurisdiction defense and the merits of a case without
waiving the personal jurisdiction defense[.]”); Hamilton v. Atlas
29
Second, the Families argue for a categorical rule under
which a defendant forfeits its personal jurisdiction defense
whenever it “files a dispositive motion on the merits without
mentioning its jurisdictional defense.” Families’ Reply Br. 6.
But none of the cases the Families cite for that rule involved
defendants who had already litigated and lost the personal
jurisdiction issue. See Boulger, 917 F.3d at 477 (no earlier
motion raising jurisdictional defense); CalMat Co. v. Oldcastle
Precast, Inc., No. 16-26 KG/WPL, 2016 WL 9776555, at *2–
3 (D.N.M. Oct. 5, 2016) (same); Casares v. Agri-Placements
Int’l, Inc., 12 F. Supp. 3d 956, 966 (S.D. Tex. 2014) (same).
We have found no such case either. Nor do the Families
explain why such a rigid rule of perpetual relitigation should
be imposed even after a personal jurisdiction defense has been
fully litigated and rejected in district court.
Third, relying on Bouchet v. National Urban League, Inc.,
730 F.2d 799 (D.C. Cir. 1984), the Families contend that the
Palestinian Defendants were required to renew their motion to
dismiss after the district court vacated the default because the
“motion was denied by minute order, which did not create ‘law
of the case,’” Families’ Reply Br. 10. Bouchet actually proves
the opposite. That case held that a minute order created law of
the case on the issue it “necessarily decided,” but not on a “new
issue” that arose later. Id. at 806. So the problem was not that
minute orders are unable to create law of the case, but that the
law-of-the-case doctrine is triggered only when an issue is
“expressly addressed” or “must have been decided by
Turner, Inc., 197 F.3d 58, 62–63 (2d Cir. 1999) (finding forfeiture
where the defendant pleaded the defense, but then participated in
pretrial proceedings for four years without moving to dismiss for lack
of personal jurisdiction); Continental Bank, N.A. v. Meyer, 10 F.3d
1293, 1296–1297 (7th Cir. 1993) (similar).
30
necessary implication[.]” Id. (internal quotation marks
omitted).6
Anyhow, it would make little sense to evaluate a
defendant’s diligence in advancing its personal jurisdiction
defense based on whether the district court explains itself.
After all, “any order or other decision, however designated,”
that does not resolve all claims against all parties and that the
district court does not make final under Rule 54(b) “may be
revised at any time before the entry of a [final] judgment[.]”
FED. R. CIV. P. 54(b) (emphasis added). So a minute order is
open to reconsideration on the same terms as a lengthy opinion
reaching the same result.
For all of those reasons, we hold that the Palestinian
Defendants properly preserved their objection to the court’s
exercise of personal jurisdiction for appellate review, and the
district court abused its discretion in holding otherwise.7
C
The easiest part of this case is the actual merits of the
Palestinian Defendants’ objection to personal jurisdiction. We
review de novo “the district court’s assertion of personal
jurisdiction[.]” In re Sealed Case, 932 F.3d 915, 922 (D.C. Cir.
2019) (internal quotation marks omitted). And as the Families
6
Although minute orders bind the parties and can create law of
the case, their weight on appeal is necessarily diminished because we
are deprived of any insight as to why the district court ruled as it did.
7
This case does not present, and so we do not decide, the
question whether a district court’s entry of a default judgment, see
FED. R. CIV. P. 55(b)—as opposed to the Clerk’s entry of default as
occurred here, see FED. R. CIV. P. 55(a)—would require more
vigorous efforts on the part of a defendant to preserve a personal
jurisdiction argument.
31
admit, binding circuit precedent answers the question in the
Palestinian Defendants’ favor.
There are two forms of personal jurisdiction: “general or
all-purpose jurisdiction, and specific or conduct-linked
jurisdiction.” Klieman, 923 F.3d at 1119 (quoting Daimler,
571 U.S. at 122). “A court may assert general jurisdiction over
foreign corporations to hear any and all claims against them
when their affiliations with the forum are so continuous and
systematic as to render them essentially at home in the forum.”
Id. at 1120 (quoting Daimler, 571 U.S. at 127) (formatting
modified). “[A]bsent exceptional circumstances,” that means
“general jurisdiction will lie only where an entity is formally
incorporated or maintains its principal place of business.” Id.
Specific jurisdiction, by contrast, requires “a relationship
among ‘the defendant, the forum, and the litigation.’”
Klieman, 923 F.3d at 1120 (quoting Walden v. Fiore, 571 U.S.
277, 291 (2014)). Put another way, “the defendant’s suit-
related conduct must create a substantial connection with the
forum.” Id. (emphasis omitted) (quoting Walden, 571 U.S. at
284).
1
The Palestinian Authority and the PLO are not subject to
general jurisdiction because neither one is “at home” in the
District of Columbia within the meaning of Daimler. See 571
U.S. at 139. Livnat was explicit that, because the Palestinian
Authority’s “headquarters, officials, and primary activities are
all in the West Bank,” it is “not subject to general jurisdiction
in the United States.” 851 F.3d at 56. In Klieman, we
reaffirmed that holding as to the Palestinian Authority and
extended it to the PLO. 923 F.3d at 1123.
32
Klieman also forecloses any argument that either the
Palestinian Authority or the PLO could be deemed to have
consented to jurisdiction, within the meaning of the Anti-
Terrorism Clarification Act of 2018.8 The Anti-Terrorism
Clarification Act treated “certain conduct” by defendants as
consent to general personal jurisdiction, Klieman, 923 F.3d at
1127, such as receiving certain forms of foreign aid, or
establishing or maintaining an “office, headquarters, premises,
or other facilities or establishments within the jurisdiction of
the United States” while “benefiting from a waiver or
suspension” of the Anti-Terrorism Act’s prohibitions regarding
the PLO. 18 U.S.C. § 2334(e)(1) (2018) (citing 22 U.S.C.
§ 5202).
Klieman held that neither the Palestinian Authority nor the
PLO satisfied any of the Anti-Terrorism Clarification Act’s
factual predicates for consent to jurisdiction. See 923 F.3d at
1128–1130. Because the Families concede that Klieman
controls and have not come forth with any evidence that the
facts pertaining to consent have changed in the interim, the
Anti-Terrorism Clarification Act does not provide a basis for
exercising general personal jurisdiction over either the
Palestinian Authority or the PLO.
2
Binding circuit precedent likewise forecloses the exercise
of specific personal jurisdiction over the Palestinian Authority
and the PLO. The Families argued in district court that specific
jurisdiction existed because (i) the Palestinian Authority and
the PLO provided material support for terrorism as part of a
8
Pub. L. No. 115-253, § 4(a), 132 Stat. 3183, 3184 (codified at
18 U.S.C. § 2334(e)), repealed by Promoting Security and Justice for
Victims of Terrorism Act of 2019, H.R. 1865, 116th Cong., div. J,
§ 903 (enacted Dec. 20, 2019).
33
public relations campaign designed to influence the United
States’ policy toward Israel, and (ii) it was foreseeable that the
bombing would injure United States citizens because it took
place in a neighborhood that visitors and emigrants from the
United States were known to frequent.
Livnat rejected that same public-relations theory because
the plaintiffs there “failed to link th[e] particular attack to the
alleged plan to influence opinion and policy in the United
States.” 851 F.3d at 56–57; see Klieman, 923 F.3d at 1124
(“Livnat’s logic governs here.”). The link missing in those
cases is absent here too. The Families do not identify any
evidence in the record connecting the Karnei Shomron
bombing to the alleged public relations campaign.
Klieman similarly puts the kibosh on the jurisdictional
theory that the area was frequented by Americans. Klieman
ruled that evidence of “intentional targeting” of Americans or
some other form of “intentional conduct by the defendant” is
needed to “create[] the necessary contacts with the forum.” Id.
at 1126 (quoting Walden, 571 U.S. at 286). The Families have
come forward with no such evidence.
3
Livnat and Klieman would have been the end of the
personal jurisdiction story in this case but for an intervening
Act of Congress. Three months after oral argument, Congress
enacted the Promoting Security and Justice for Victims of
Terrorism Act of 2019, H.R. 1865, 116th Cong., div. J, § 903
(enacted Dec. 20, 2019) (“Justice for Victims Act”).
As relevant here, the Justice for Victims Act provides that
the Palestinian Authority and the PLO specifically “shall be
deemed to have consented to personal jurisdiction” in any Anti-
Terrorism Act suit if they make certain types of payments to
34
terrorists or their families “directly or indirectly” after April 18,
2020. H.R. 1865, 116th Cong., div. J, § 903(c)(1)(A) (to be
codified at 18 U.S.C. § 2334(e)).
The Justice for Victims Act applies retroactively to “any
case pending on or after August 30, 2016,” H.R. 1865,
§ 903(d)(2), “regardless of the date of the occurrence of the act
of international terrorism” at issue, id. § 903(c)(1)(A) (to be
codified at 18 U.S.C. § 2334(e)(1)).
The Families argue that, after April 18, 2020, the
Palestinian Defendants might make the types of payments
covered by the Justice for Victims Act and, in so doing, trigger
retroactive consent to personal jurisdiction. On that basis, they
request that this court remand the case to the district court to
address the implications of this new statute in the first instance.
The Palestinian Defendants dismiss that suggestion as
speculative because they might never make covered payments.
The Palestinian Defendants are correct. Perhaps the
Justice for Victims Act will at some point create personal
jurisdiction over the Palestinian Authority or the PLO. But
neither one of them can possibly have made any statutorily
relevant payments before the jurisdictional trigger even takes
effect. The mere prospect that they might do so in the future
does not create personal jurisdiction now. Cf. Timbisha
Shoshone Tribe v. Salazar, 678 F.3d 935, 937–939 (D.C. Cir.
2012) (ordering dismissal for lack of jurisdiction because the
plaintiffs lacked standing to sue on behalf of their Tribe,
despite pending litigation that might lead to their recognition
as the Tribe’s leadership).
Because the Palestinian Defendants are not now and were
not at the time they were served subject to the district court’s
personal jurisdiction, this case must be dismissed without
35
prejudice. See Caribbean Broad. Sys., Ltd. v. Cable & Wireless
P.L.C., 148 F.3d 1080, 1091 (D.C. Cir. 1998) (dismissals for
lack of personal jurisdiction are without prejudice). That
dismissal without prejudice would, of course, leave the
Families free to refile if new facts establish personal
jurisdiction before the statute of limitations runs. See Dozier v.
Ford Motor Co., 702 F.2d 1189, 1192 (D.C. Cir. 1983)
(dismissals for lack of jurisdiction are not preclusive where the
“jurisdictional deficiency [is] remedied by occurrences
subsequent to the original dismissal”) (emphasis omitted).
IV
In sum, the Palestinian Defendants did not forfeit their
personal jurisdiction defense, and the district court abused its
discretion in concluding otherwise. Because the district court
lacked personal jurisdiction over the defendants, its judgment
on the merits cannot stand. We therefore vacate the district
court’s judgment and remand with instructions to dismiss the
case without prejudice for lack of jurisdiction.
So ordered.