Akhmetshin v. Browder

• Decision Date: 26 May 2022
• Docket Number: 21-SP-238
• Parties: Rinat AKHMETSHIN, Appellant, v. William BROWDER, Appellee.
• Court: D.C. Court of Appeals

275 A.3d 290

Rinat AKHMETSHIN, Appellant,

v.William BROWDER, Appellee.

No. 21-SP-238

District of Columbia Court of Appeals.

Argued September 23, 2021

Decided May 26, 2022

Alexandra Elenowitz-Hess, with whom Michael Tremonte and Kim Hoyt Sperduto were on the brief, for appellant.

Michael Gottlieb, with whom Stephanie L. Miner was on the brief, for appellee.

Before Glickman, Beckwith, and McLeese, Associate Judges.

Dissenting opinion by Associate Judge Glickman at page 296-97.

Beckwith, Associate Judge:

The United States Court of Appeals for the District of Columbia Circuit has certified four questions of law concerning the so- called government contacts exception to this court:¹

1. May nonresident aliens who are citizens only of foreign countries invoke the government contacts exception?

2. If the first question is answered in the affirmative, must those nonresident aliens possess cognizable rights pursuant to the First Amendment generally, or any specific clause thereunder, in order to invoke the exception?

3. Does the government contacts exception extend to efforts to influence federal policy other than direct contacts with agents, members, or instrumentalities of the federal government?

4. If the third question is answered in the affirmative, what standard governs in determining whether activities not involving direct contacts with the federal government are covered under the exception?

These questions arise in the context of a defamation suit filed by Rinat Akhmetshin against William Browder in the United States District Court for the District of Columbia. Because Mr. Browder's purportedly defamatory statements were made outside the District of Columbia, Mr. Akhmetshin, a D.C. resident, sought to establish personal jurisdiction over Mr. Browder, a citizen of the United Kingdom who is not a resident of the District or the United States, under § (a)(4) of the D.C. long-arm statute.² That provision permits a court in the District of Columbia to exercise personal jurisdiction over claims alleging that a defendant's act outside the District caused tortious injury in the District, as long as one of three "plus factors" is satisfied, establishing a sufficient connection between the defendant and the District. D.C. Code § 13-423(a)(4) (2012 Repl.); see also Etchebarne-Bourdin v. Radice , 982 A.2d 752 (D.C. 2009).

The district court determined that whether the exercise of personal jurisdiction over Mr. Browder comports with the D.C. long-arm statute turns on whether Mr. Browder has engaged in a "persistent course of conduct" in the District within the meaning of § (a)(4). See Akhmetshin v. Browder , 407 F. Supp. 3d 11, 20–22 (D.D.C. 2019). Mr. Browder contends that he has not, because his conduct within the District consisted of "government contacts" that cannot be used to establish a "persistent course of conduct" in the District.³ The certified questions thus involve whether someone who has renounced his U.S. citizenship can invoke the "government contacts" principle and, if so, whether Mr. Browder's activities in the District fall within the exception.

When considering a certified question, however, "we are not limited to the designated question[s] of law but may ‘exercise our prerogative to frame the basic issues as we see fit for an informed decision.’ " Delahanty v. Hinckley , 564 A.2d 758, 760 (D.C. 1989) (quoting Penn Mut. Life Ins. Co. v. Abramson , 530 A.2d 1202, 1207 (D.C. 1987) ). Mr. Akhmetshin urges us to resolve the questions about Mr. Browder's amenability to suit in the District on grounds not directly presented in the certified questions—namely, that the government contacts exception does not apply to assertions of jurisdiction under § (a)(4) of the long-arm statute at all, at least insofar as they rest on a "persistent course of conduct" in the District. If it does not, then we need not reach questions about the scope of that exception when or if it applies.

I.

The government contacts principle predates the enactment of the D.C. long-arm statute, originating as a way of determining what it meant to be "doing business" in the District within the meaning of the service-of-process statute then in effect. See Mueller Brass Co. v. Alexander Milburn Co. , 152 F.2d 142, 143–44 (D.C. Cir. 1945) (holding that employing a representative in the District to "gather[ ] information from" and "maintain contact with" federal government agencies does not "constitute doing business in the District of Columbia" within the meaning of D.C. Code § 13-103 (1940)); see also Fandel v. Arabian Am. Oil Co. , 345 F.2d 87, 89 (D.C. Cir. 1965) (describing Mueller Brass and other cases interpreting "doing business" in the service-of-process statute as "recogni[zing] that Washington presents many business organizations with special needs for a continuous and ponderable physical presence there, which needs are not those customarily associated with strictly commercial operations," and which were thus "outside the range of Congressional contemplation of the scope of ‘doing business’ as that phrased is used in [the statute]").

This court first considered the applicability of the doctrine to the D.C. long-arm statute in Environmental Research International, Inc. v. Lockwood Greene Engineers, Inc. , 355 A.2d 808, 813–14 (D.C. 1976) (en banc). The basis for long-arm jurisdiction at issue there was § (a)(1), which provides for the exercise of personal jurisdiction as to a claim of relief arising from a defendant's "transacting any business in the District of Columbia." D.C. Code § 13-423(a)(1). The en banc court described § (a)(1)’s "transacting any business" provision as a more liberal amendment to the "doing business" criterion of the service-of-process statute, and concluded that "Congress did not intend to set aside [the government contacts] principle when it enacted the ... long-arm statute." Env't Rsch. , 355 A.2d at 813 & n.10. But the opinion leaves unclear whether the so-called exception would apply to other provisions of the long-arm statute. Compare, e.g. , id. at 813 ("The rationale for the ‘government contacts’ exception to the District of Columbia's long-arm statute does not hinge upon the wording of the statute. Rather, it finds its source in the unique character of the District as the seat of national government and in the correlative need for unfettered access to federal departments and agencies for the entire national citizenry."), and id. at 810–11 (concluding that the D.C. long-arm statute extends to the extent permitted by the Due Process Clause), with, e.g. , id. at 813 (holding that defendants’ representatives’ visits to D.C. to consult with federal government officials cannot "constitute the transaction of business here"), and id. at 814 (noting that "activities ... consist[ing] solely of contacts with the federal government[ ] d[o] not constitute the transaction of business within the meaning the statute" and "[a]bsent activities which can place a nonresident within the scope of the long-arm statute, no personal jurisdiction may be asserted over him").

To date, this court has not applied the government contacts exception to § (a)(4)—or to any provision of the long-arm statute other than § (a)(1).⁴ And our post- Environmental Research cases send similarly conflicting messages about the conceptual basis for the doctrine. Compare, e.g. , Rose v. Silver , 394 A.2d 1368, 1373–74 (D.C. 1978) ("[T]he ‘government contacts’ principle ... deems one not to be transacting business in the District of Columbia, or, perhaps more accurately, it exempts one from assertions of personal jurisdiction in the District, if the ‘sole contact with the District consists of dealing with a federal instrumentality.’ " (quoting Env't Rsch. , 355 A.2d at 813 )), and Companhia Brasileira Carbureto de Calcio v. Applied Indus. Materials Corp. , 35 A.3d 1127, 1131 (D.C. 2012) (describing the government contacts principle as an "exception under which courts in the District of Columbia would refrain from exercising personal jurisdiction even though the requirements of due process and the long-arm statute otherwise would be satisfied"), with, e.g. , Lex Tex Ltd., Inc. v. Skillman , 579 A.2d 244, 244 (D.C. 1990) (describing a certified question from the D.C. Circuit regarding the application of the government contacts exception as a question asking us to "interpret the District of Columbia ‘long-arm’ statute"), and Rose , 394 A.2d at 1373 (describing the pre- Environmental Research cases as "interpreting the long-arm statute previously in effect" and "[e]ssentially ... saying that government information-gathering in the District did not amount to doing business here").

Unsurprisingly, then, there has been ongoing confusion as to the scope of the principle in the § (a)(1) context. Compare, e.g. , Rose , 394 A.2d at 1368 (suggesting that a defendant would have to show that "long-arm jurisdiction would violate the First Amendment" to fall within the government contacts principle), with Naartex Consulting Corp. v. Watt , 722 F.2d 779, 787 (D.C. Cir. 1983) (holding that appearances in the District "made in an attempt to influence government action" and therefore "undoubtedly qualify[ing] as exercises in petitioning the government" fall within the government contacts exception without considering whether the exercise of jurisdiction based on those contacts would violate defendants’ First Amendment rights). Mindful of this uncertainty, we consider whether the principle applies in § (a)(4) cases.

II.

If our case law does not compel the conclusion that the government contacts exception applies to cases under § (a)(4), neither does the text of that provision. Subsection (a)(1) involves "transacting any business," and so in considering that provision it made sense to look to how the court had defined "doing business in the District of Columbia in the jurisdictional sense," and thus to the doctrine articulated in Mueller Brass , 152 F.2d at 144, under the earlier...