Akhmetshin v. Browder, No. 19-7129

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Edwards, Senior Circuit Judge
• Citation: 993 F.3d 922
• Parties: Rinat AKHMETSHIN, Appellant v. William BROWDER, Appellee
• Docket Number: No. 19-7129
• Decision Date: 22 September 2020

993 F.3d 922

Rinat AKHMETSHIN, Appellant
v.
William BROWDER, Appellee

No. 19-7129

United States Court of Appeals, District of Columbia Circuit.

September 22, 2020
April 13, 2021

Michael Tremonte argued the cause for appellant. With him on the briefs was Alexandra G. Elenowitz-Hess, New York, NY.

Michael J. Gottlieb argued the cause and filed the brief for appellee. With him on the briefs was Stephanie L. Miner, Washington, DC.

Before: Tatel and Katsas, Circuit Judges, and Edwards, Senior Circuit Judge.

Edwards, Senior Circuit Judge:

TABLE OF CONTENTS

OPINION ACCOMPANYING CERTIFICATION OF QUESTIONS TO THE QUESTIONS TO THE D.C. COURT OF APPEALS ...924

ORIGINAL PANEL OPINION AND DISSENTING OPINION ...929

DEFENDANT-APPELLEE'S PETITION FOR PANEL REHEARING OR REHEARING EN BANC ...951

PLAINTIFF-APPELLANT'S RESPONSE TO THE PETITION FOR PANEL REHEARING AND REHEARING EN BANC ...960

In 2018, Appellant Rinat Akhmetshin, a resident of the District of Columbia ("District") and a dual citizen of the United States and the Russian Federation, filed a defamation action in the United States District Court for the District of Columbia against Appellee William Browder, a nonresident alien and citizen of the United Kingdom. The District Court had subject-matter jurisdiction on diversity-of-citizenship grounds. See 28 U.S.C. § 1332(a)(2).

Browder moved to dismiss the action on several grounds, including for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Because Browder made his allegedly defamatory statements while outside of the District of Columbia, Akhmetshin sought to establish personal jurisdiction over Browder under section 13-423(a)(4) of the District's long-arm jurisdiction statute. See D.C. CODE § 13-423(a)(4) (2001). According to Browder, however, the "government contacts exception" resulted in the exclusion of the vast majority of his conduct within the District from the personal jurisdiction calculus. See Env't Rsch . Int'l, Inc. v. Lockwood Greene Eng'rs, Inc. , 355 A.2d 808, 813 (D.C. 1976) (en banc). Akhmetshin countered by arguing that that the government contacts exception was inapplicable because Browder is a nonresident alien who lacks sufficient ties to the United States. The District Court agreed with Browder, dismissing the case on personal jurisdiction grounds and denying Akhmetshin's request for jurisdictional discovery. See Akhmetshin v. Browder , 407 F. Supp. 3d 11, 14 (D.D.C. 2019).

Akhmetshin appealed the District Court's decision. We vacated and remanded, holding that much of Browder's conduct within the District – including several activities that may not have included direct contact with agents, members, or instrumentalities of the federal government – should have been included in the jurisdictional calculus. Akhmetshin v. Browder, 983 F.3d 542, 553-55 (D.C. Cir. 2020). In reaching that result, we declined to pass upon Akhmetshin's contention that the government contacts exception has limited applicability to nonresident aliens. See id. at 550-53. Instead, we vacated the District Court's order and remanded for jurisdictional discovery, noting that – in our view – the District Court had abused its

993 F.3d 925

discretion in applying an overbroad view of the government contacts exception. Id. at 557-58.

Judge Tatel dissented. He suggested that the better course would be to certify two questions to the District of Columbia Court of Appeals: First, what is the scope of the government contacts exception when it is applied to efforts to influence federal legislation and policy through the media? Second, may a nonresident alien invoke the exception? See id. at 563 (Tatel, J., dissenting).

Browder timely petitioned for panel rehearing and rehearing en banc. After considering his arguments and Akhmetshin's response, the panel has now decided to certify questions to the D.C. Court of Appeals regarding the circumstances in which the government contacts exception applies and whether nonresident aliens who are citizens only of foreign countries may invoke the government contacts exception.

Four questions are hereby certified for consideration by the D.C. Court of Appeals. The certified questions appear at the conclusion of part III of this opinion.

I. A Brief Summary of the Facts and Proceedings Leading to Certification

The original decision issued by this court lays out in detail the context in which this case arose, including Browder's historical connections to the District and the procedural background of this litigation. See Akhmetshin, 983 F.3d at 547-50. We recount those details here only to the extent necessary to provide useful background to the D.C. Court of Appeals or to clarify any matters that might otherwise be confusing.

Browder is a financier who lives and works in the United Kingdom. Since 2009, he has traveled to the District on a number of occasions. Akhmetshin alleged (without discovery) that Browder has – while in the District – met with members of Congress and provided testimony before governmental bodies, appeared on television and podcasts, given interviews to publications, participated in panel discussions at nongovernmental organizations ("NGOs") and think tanks, promoted a book he authored, and attended personal events such as social dinners and a funeral. Both parties agree that this conduct has on a number of occasions related in some way to Browder's advocacy for measures holding human rights abusers in Russia and elsewhere accountable for their misdeeds. In particular, Browder expended extensive efforts in promoting passage of the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 (the "Magnitsky Act"). See Pub. L. No. 112-208, 126 Stat. 1496 (2012). It appears, however, that substantial portions of Browder's conduct in the District – particularly after 2012 – did not include direct contacts with agents, members, or instrumentalities of the Federal Government.

On July 12, 2018, Akhmetshin filed a complaint against Browder in the District Court, alleging that Browder had defamed him in several July 2017 tweets and statements. Browder moved to dismiss the complaint for, among other things, lack of personal jurisdiction, asserting that his conduct within the District was not sufficient to satisfy any of the three "plus factors" required by D.C. Code § 13-423(a)(4). According to Browder, his contacts with the District were largely related to lobbying and advocacy efforts and, therefore, under the government contacts exception, could not be considered in determining whether he was subject to personal jurisdiction in the District. In response, Akhmetshin asserted that the government contacts exception could not apply to Browder because he is a nonresident

993 F.3d 926

alien who lacks sufficient ties to the United States. Akhmetshin also argued that Browder's contacts with the District satisfied any of the three plus factors in the long-arm statute. In the alternative, Akhmetshin requested limited jurisdictional discovery to further establish Browder's contacts with the District.

The District Court granted Browder's motion to dismiss on personal jurisdiction grounds, denied Akhmetshin's request for discovery, and dismissed the case without prejudice. See Akhmetshin v. Browder, 407 F. Supp. 3d 11, 14 (D.D.C. 2019). In analyzing whether Browder's contacts with the District constituted a "persistent course of conduct" under the District's long-arm statute, the District Court held that the government contacts exception applies to the conduct of nonresident aliens, relying in large part on a footnote from an opinion of this court, as well as prior District Court decisions. See id. at 23-24 (citing Stabilisierungsfonds fur Wein v. Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 205 n.11 (D.C. Cir. 1981) ; LG Display Co. v. Obayashi Seikou Co., 919 F. Supp. 2d 17, 26-27 (D.D.C. 2013) ). The District Court then excluded from the jurisdictional calculus virtually all of Browder's conduct within the District – regardless of whether it included direct contacts with Federal Government agencies or officials – under the exception. Id. at 24-25, 24 n.15. In so doing, the court expressed its view that the government contacts exception operated to exclude from its inquiry all connections with the District made by "a non-resident defendant who ‘concerns [himself] with federal legislation, regulations, and policies’ in an effort to ‘advance [the non-resident defendant's federal] policy agenda.’ " Id. at 24 (alterations in original) (quoting United Therapeutics Corp. v. Vanderbilt Univ., 278 F. Supp. 3d 407, 418 (D.D.C. 2017) ).

Akhmetshin appealed and we reversed the District Court's decision to deny jurisdictional discovery. See Akhmetshin, 983 F.3d at 558. We explained that it was unclear to us whether, based on D.C. Court of Appeals precedent, the government contacts exception applies to nonresident aliens. See id. at 550-51. We concluded that, if we were forced to resolve that issue in order to dispose of the case, we would likely need to certify a question to the D.C. Court of Appeals. See id. at 553.

The panel majority thought that the nonresident alien issue might...