Federal Rule of Civil Procedure 4(k)(2) and Fifth Amendment. United States Court of Appeals, District of Columbia Circuit affirms the order of the United States District Court for the District of Columbia denying jurisdictional discovery and granting Palestinian Authority’s Motion to Dismiss for lack of personal jurisdiction

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. 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. 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 Livnat and Safra families brought suit in federal district court seeking to hold the Palestinian Authority vicariously liable for the attack, bringing claims under both the Antiterrorism Act, 18 U.S.C. § 2333, and common-law tort. The families alleged 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. *47

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. 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. *48

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, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).

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....”). In Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002), it was held that foreign states are not persons and are not covered by the Due Process Clause. Id. at 96.

The rule in Price—that foreign states are not “persons” under the Due Process Clause—applied only to sovereign foreign states. Nothing in Price, other precedent, or the appellants’ arguments compelled the court to extend the rule in Price to all foreign government entities. And no party argued that the Palestinian Authority was a sovereign foreign state. *49

The appellants contended that Price’s reasoning applied equally in this case. But in Price, the court had a particular type of entity in mind. When addressing whether the Due Process Clause applied to “foreign states,” the court 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 was different. Both parties acknowledged that the Palestinian Authority was not recognized by the United States as a government of a sovereign state. And the appellants—even though they sought to apply Price’s holding here—conceded that the Palestinian Authority was 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, was whether Price’s rationales depended on the fact that Libya was sovereign, or whether they extended 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. *50

The court thought the former was correct: Price’s primary rationales hinged on sovereignty. *50

Ignoring the underlying premise that States of the Union and foreign states are both sovereigns, the appellants instead focused on a different aspect of Price’s comparison of the two. They noted that Price described foreign states, unlike States of the Union, as “alien to our constitutional system,” 294 F.3d at 96, and argued that Price’s rule for foreign states must also apply to non-sovereign foreign governments because they were also “alien.” That was wrong several times over. *51

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, 84 S.Ct. 923, 11 L.Ed.2d 804 (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, 84 S.Ct. 923 (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, 124 S.Ct. 2359, 159 L.Ed.2d 226 (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. 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. *51

Finally, Price’s concern that recognizing due-process rights might pose “practical problems,” 294 F.3d at 99, did not change their conclusion that Price’s holding applied to sovereigns alone. *52

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. The court did not apply the rule from Price. Instead, the court 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, 180 L.Ed.2d 796 (2011)).

The Second Circuit likewise applied due-process standards for personal jurisdiction when the defendant was 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 the court, the Second Circuit held that the Palestinian Authority and the Palestine Liberation Organization were 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. The court agreed, at least to the extent that only sovereign entities are excluded from due-process protection as foreign states. *52

The appellants offered several other arguments why non-sovereign governments like the Palestinian Authority were not entitled to due-process protection. None was persuasive. They argued that the Court’s 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), supported their position. That was a non sequitur. Whether government instrumentalities received the same due-process protection as their government (the question in TMR and GSS) had nothing to do with whether a government received due-process protection in the first place (the question here). Next, the appellants suggested that other non-sovereign government entities, such as municipalities, did 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 cited, City of East St. Louis v. Circuit Court, 986 F.2d 1142 (7th Cir. 1993), was inapposite. Finally, the appellants argued 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 was no indication that Congress thought ordinary due-process requirements would not apply here. And regardless, Congress cannot wish away a constitutional provision. *53

According to the Livnats, Safras, and amici, the Fifth Amendment’s Due Process Clause imposed personal-jurisdiction restrictions that were less protective of defendants than those imposed by the Fourteenth Amendment. Because strong justifications for personal-jurisdiction limits apply equally in Fifth Amendment cases, the court declined to devise new standards for those cases that were less stringent than those under the Fourteenth Amendment. *55

Applying consistent personal-jurisdiction standards under the Fifth and Fourteenth Amendments was 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, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010)). Without any compelling justification for developing a new personal-jurisdiction doctrine, the Court declined to send courts and litigants on that journey. Finally, the Court disagreed that applying the usual personal-jurisdiction doctrine in Fifth Amendment cases will, as the Livnats, Safras, and amici suggest, threaten extraterritorial law enforcement. *56

The appellants did 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 appellants failed in their burden to show specific personal jurisdiction. Finally, the appellants argued in the alternative that the district court should have permitted jurisdictional discovery. The district court did not abuse its discretion here, because the additional discovery requested by the appellants would not change the court’s analysis. The appellate court therefore affirmed 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. *58

CITATION: Livnat v. Palestinian Authority, 851 F. 3d 45—Court of Appeals, Dist. of Columbia Circuit 2017.

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