Livnat v. Palestinian Auth.

• Decision Date: 24 March 2017
• Docket Number: No. 15-7024,C/w 15-7025,15-7024
• Citation: 851 F.3d 45
• Parties: 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
• Court: U.S. Court of Appeals — District of Columbia Circuit

851 F.3d 45

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

C/w 15-7025

United States Court of Appeals, District of Columbia Circuit.

Argued September 14, 2016

Decided March 24, 2017

Jessica P. Weber, Baltimore, MD, argued the cause for appellants. With her on the briefs were Andrew D. Levy and Alan I. Baron, Washington, DC.

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 holy site in the West Bank believed by many to be the burial place of the biblical patriarch. Among the victims were Ben-Yosef Livnat, who was killed, and U.S. citizens Yitzhak Safra and Natan Safra, who were wounded

in the gunfire. The Livnat and Safra families brought suit in federal district court seeking to hold the Palestinian Authority vicariously liable for the attack. For the reasons set forth below, we conclude that the suits may not be brought in the courts of the United States.

I

According to the Livnats and Safras, the perpetrators of the attack were the security guards hired to protect Joseph's Tomb by the Palestinian Authority. The Palestinian Authority is a government headquartered in the West Bank city of Ramallah. Established following the 1993 Oslo Accords between Israel and the Palestine Liberation Organization, the Palestinian Authority administers civilian and internal security services in parts of the West Bank and the Gaza Strip. External security remains within Israel's control. See Interim Agreement on the West Bank and the Gaza Strip, Isr.-P.L.O., art. X, Sept. 28, 1995, 36 I.L.M. 551, 561 [hereinafter Oslo II]. The Oslo Accords also circumscribe the Palestinian Authority's "powers and responsibilities in the sphere of foreign relations." Id. art. IX, 36 I.L.M. at 561. The Palestinian Authority has non-member observer status in the United Nations and receives foreign aid from the United States, the European Union, and other sources. The United States does not recognize the Palestinian Authority as a government of a sovereign state.

The families allege that the guards who perpetrated the attack at Joseph's Tomb were acting within the scope of their employment by the Palestinian Authority, which knew that the commander of the guards had served time in Israeli prison on terrorism-related charges. The families claim that the attack was directed at the United States as "part and parcel of" the Palestinian Authority's "general practice of using terrorism to influence United States public opinion and policy." Compl. at 5, Livnat v. Palestinian Auth. , No. 1:14-cv-00668 (D.D.C. Apr. 21, 2014); Compl. at 3, Safra v. Palestinian Auth. , No. 1:14-cv-00669 (D.D.C. Apr. 21, 2014).

The Livnats and Safras filed identical lawsuits against the Palestinian Authority in federal district court, bringing claims under both the Antiterrorism Act, 18 U.S.C. § 2333, and common-law tort. The Palestinian Authority moved to dismiss for lack of personal jurisdiction, among other grounds. The families opposed and filed cross-motions for leave to take jurisdictional discovery. The court denied the families' cross-motions for jurisdictional discovery, reasoning that their proposed discovery would have been futile, and granted the motions to dismiss.

The district court addressed the issue of personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2), concluding that the Livnats and Safras had forfeited all other statutory bases for personal jurisdiction. Livnat v. Palestinian Auth. , 82 F.Supp.3d 19, 24-25 & n.9 (D.D.C. 2015) ; Safra v. Palestinian Auth. , 82 F.Supp.3d 37, 43 & n.8 (D.D.C. 2015). Rule 4(k)(2) permits a federal court to exercise personal jurisdiction if the claim arises under federal law, process was properly served, the defendant is not subject to jurisdiction in any state court of general jurisdiction, and—the requirement at issue here—jurisdiction "is consistent with the United States Constitution and laws." FED. R. CIV. P. 4(k)(2). The district court held that this last requirement was not met. Applying the Due Process Clause of the Fifth Amendment, the court found that the Palestinian Authority was not "at home" in the United States and that the attack was not sufficiently directed at the United States.

The Livnats and Safras timely appealed, and their cases are consolidated here. We have jurisdiction under 28 U.S.C. § 1291. In both cases, we review de novo the district court's dismissal for lack of personal jurisdiction, and we review for abuse of discretion the denial of jurisdictional discovery. FC Inv. Grp. LC v. IFX Mkts., Ltd. , 529 F.3d 1087, 1091 (D.C. Cir. 2008).

II

The question before us is whether the Fifth Amendment's Due Process Clause permits personal jurisdiction over the Palestinian Authority in these disputes. We begin with the contention by the Livnats and Safras that the Clause imposes no limits at all on personal jurisdiction over the Palestinian Authority.

A

In International Shoe Co. v. Washington , 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (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, 66 S.Ct. 154 (quoting Milliken v. Meyer , 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (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, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) ).

This general rule, however, has a few narrow exceptions. Constitutional limits on the personal jurisdiction of the courts do not protect entities that are not covered by the Due Process Clause, and the language of the Clause speaks only of "persons." U.S. CONST. amend. V ("No person shall ... be deprived of life, liberty, or property, without due process of law...."). The Supreme Court held in South Carolina v. Katzenbach , 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), that States of the Union are not "persons" under the Clause. Id. at 323-24, 86 S.Ct. 803. And we held in Price v. Socialist People's Libyan Arab Jamahiriya , 294 F.3d 82 (D.C. Cir. 2002), that neither are foreign states. Id. at 96.

Nor is the Palestinian Authority, according to the appellants, who urge us to extend Price to the Palestinian Authority by holding that Price applies not just to sovereign foreign states, but to any foreign entity that "functions as a government." Appellants' Br. 19.

We reject appellants' reading of Price . To begin with, Price represents a rare exception to the general rule that the Due Process Clause protects all litigants in our courts, especially by limiting the power of courts to hale defendants 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, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ), and that "person" in the Due Process Clause had already been interpreted to exclude States of the Union, we asked whether there was any "compelling reason to treat foreign sovereigns more favorably," id. We could identify none, because if anything the Constitution treats foreign sovereigns less favorably. The States of the Union "derive important benefits" from the Constitution (such as protection against invasion, U.S. CONST. art IV, § 4 ) in exchange for "abid [ing] by significant limitations" (such as the supremacy of federal...