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
No. 15-7024
United States Court of Appeals, District of Columbia Circuit.
Decided March 24, 2017
Consolidated with 15-7025; Argued September 14, 2016
So ordered.
Peter Raven-Hansen, Philadelphia, PA, and David A. Reiser, Washington, DC, were on the brief for amici curiae Former Federal Law Enforcement Officials in support of appellants.
Mitchell R. Berger, Washington, DC, argued the cause for appellee. With him on the brief were Pierre H. Bergeron, Cincinnati, OH, John Burlingame, Alexandra E. Chopin, and Gassan A. Baloul, Washington, DC.
Before: GRIFFITH and WILKINS, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
GRIFFITH, Circuit Judge:
In 2011, Jewish worshippers were shot by armed gunmen at Joseph’s Tomb, a
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 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,
The district court addressed the issue of personal jurisdiction under
The Livnats and Safras timely appealed, and their cases are consolidated here. We have jurisdiction under
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 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.”
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 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 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,
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.
The appellants contend that Price’s reasoning applies equally in this case. But in Price, we had a particular type of entity in
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 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
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, — U.S. —, 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 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.
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
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, 564 U.S. 915, 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 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 Prop. Fund of Ukr., 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
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. 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 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
III
Our analysis of constitutional limits on personal jurisdiction is governed by the Due Process Clause of the Fifth Amendment. That is unusual, because most cases in the courts of the United States concern
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, — U.S. —, 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.
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, 417 F.3d at 1, 11-14; 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, Sev-
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 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-juris-
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 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, — U.S. —, 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, 134 S.Ct. at 760. 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, 131 S.Ct. at 2853-54).
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 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 show-
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 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., 529 F.3d at 1091. 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).
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
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.