Lewis v. Mutond
| Docket Number | 21-7120 |
| Decision Date | 17 March 2023 |
| Citation | 62 F.4th 587 |
| Parties | Darryl LEWIS, Appellant v. Kalev MUTOND, in his individual capacity only, Administrateur Generale, Agence Nationale de Renseignements, Democratic Republic of the Congo and Alexis Tambwe Mwamba, in his individual capacity only, Ministre de la Justice, Garde Des Sceaux et Droits Humains, Democratic Republic of the Congo, Appellees |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia, (No. 1:16-cv-01547)
Brette A. Peña argued the cause for appellant. With her on the briefs were Merrill C. Godfrey and Jehanne McCullough.
Stephen K. Wirth argued the cause for appellees. With him on the brief were Raul R. Herrera and R. Stanton Jones.
Before: Katsas, Rao, and Childs, Circuit Judges.
Appellant Darryl Lewis, a United States citizen and veteran, alleges Appellees Kalev Mutond and Alexis Tambwe Mwamba (Foreign Officials) detained and tortured him in the Democratic Republic of the Congo (DRC). Lewis argues that the Foreign Officials did so to extract a false confession that he was an American mercenary. That is enough, in Lewis' view, to establish that the district court had personal jurisdiction over the Foreign Officials. If not, he asserts alternatively that jurisdictional discovery is warranted. We disagree and affirm the district court on both questions.
In 2016, Lewis was a security advisor to a former DRC presidential candidate. That same year, Kalev Mutond was the General Administrator of the DRC's National Intelligence Agency (ANR), and Alexis Tambwe Mwamba was the DRC's Minister of Justice.
The Foreign Officials allegedly acted in concert to detain and torture Lewis for over six weeks in violation of the Torture Victim Protection Act (TVPA). Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat. 73 (1992) (). He was interrogated for hours, fed small meals at irregular intervals, deprived of sleep, and denied essential hygiene products. Neither Lewis' employer, family, nor counsel could contact him.
The purported goal of Lewis' detention was to extract a false confession that he was one of many American mercenaries working with the then-DRC President's political opponent to undermine the government. While in prison, Official Mutond taunted him with the accusation. Compl. ¶ 31, J.A. 11. After Lewis failed to confess, Official Tambwe publicly claimed at a press conference that Lewis was a mercenary sent to assassinate the then-President of the DRC. Official Tambwe's supposed proof was two-fold: first, he showed a picture of Lewis carrying a machine gun; second, he contended that since October 2015, 600 United States citizens, men, and ex-soldiers entered the DRC as part of a "plot" to "destabilize" its government. Compl. ¶ 35, J.A. 12. Accordingly, Official Tambwe ordered the DRC's prosecutor general to explore whether Lewis' former boss, the opposition presidential candidate, had American and South African mercenaries working for him. Lewis alleges, however, that the Foreign Officials routinely single out Americans "because they are Americans and, in the case of veterans[,] . . . because they are veterans." Compl. ¶ 39, J.A. 12-13.
In response to the Foreign Officials' allegations of American involvement, the United States Embassy in the DRC released a statement that denied the claims by Official Tambwe. Compl. ¶ 40, J.A. 13. It stated, Compl. ¶ 40, J.A. 13; U.S. Embassy Concerned About Reported False Accusations of Mercenary Activities, U.S. Embassy in the Democratic Republic of the Congo (May 5, 2016), https://cd.usembassy.gov/u-s-embassy-concernedreported-false-accusations-mercenary-activities/ (last visited Jan. 2023).1
The district court dismissed Lewis' complaint for lack of personal jurisdiction. It also denied Lewis' request for jurisdictional discovery.
Lewis timely appealed. We have appellate jurisdiction under 28 U.S.C. § 1291. We review the district court's dismissal for lack of personal jurisdiction de novo and the denial of jurisdictional discovery for abuse of discretion. Livnat v. Palestinian Auth., 851 F.3d 45, 48 (D.C. Cir. 2017).
On appeal, the first question is whether the district court erred by granting the Foreign Officials' motion to dismiss the complaint for lack of personal jurisdiction. Specifically, we must answer whether the Foreign Officials purposefully availed themselves of the United States by torturing Lewis to extract a false confession that he was an American mercenary. We think not.
Only two types of personal jurisdiction can provide a home for Lewis' theory. The first is general jurisdiction, and "the paradigm forum for the exercise of general jurisdiction [for an individual] is the individual's domicile." Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011). Because the Foreign Officials are domiciled in the DRC, general jurisdiction does not exist. Appellant's Br. 12; Compl. ¶ 8, J.A. 7.
Without general jurisdiction, Lewis must establish specific jurisdiction over the Foreign Officials. Interpreting the Fourteenth Amendment's Due Process Clause, the Supreme Court has long held that specific jurisdiction is proper when a defendant has "certain minimum contacts with [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The defendant's contacts must be "purposefully directed," Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citation omitted), at the forum to establish "foreseeability . . . that the defendant's conduct and connection with the forum . . . are such that he should reasonably anticipate being haled into court there." Id. at 474, 105 S.Ct. 2174 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)); see also Mwani v. bin Laden, 417 F.3d 1, 12 (D.C. Cir. 2005) (). And a plaintiff's claims must "aris[e] out of or relat[e] to the defendant's contacts with the forum." Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 582 U.S. 255, 137 S. Ct. 1773, 1780, 198 L.Ed.2d 395 (2017) (alterations in original) (emphasis removed) (quoting Daimler AG v. Bauman, 571 U.S. 117, 127, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014)).
Lewis does not seek specific jurisdiction under the Fourteenth Amendment pursuant to Federal Rule of Civil Procedure 4(k)(1). That would establish personal jurisdiction over a domestic defendant in a particular state. Compl. ¶ 7, J.A. 7; Fed. R. Civ. P. 4(k)(1). Instead, Lewis asserts jurisdiction under the Fifth Amendment over a foreign defendant according to Rule 4(k)(2). Compl. ¶ 7, J.A. 7; Fed. R. Civ. P. 4(k)(2)(B) (). Rule 4(k)(2) permits specific jurisdiction if the defendant has, among other things, "affiliating contacts with the United States sufficient to justify the exercise of personal jurisdiction over that party." Fed. R. Civ. P. 4(k) advisory committee's notes to 1993 amendments.
True, the Supreme Court has yet to explicitly consider whether the Fifth Amendment's Due Process Clause requires the same minimum contacts to establish specific jurisdiction as under the Fourteenth Amendment. Bristol-Myers Squibb Co., 137 S. Ct. at 1784 (). However, most sister circuits and this Court agree that little jurisdictional daylight exists between the two Amendments. Livnat, 851 F.3d at 54-55.2 We have made clear even recently that "[a]part from the scope of the forum and potential federalism considerations, the Fifth and Fourteenth Amendment Due Process inquiries are generally analogous." Atchley v. AstraZeneca UK Ltd., 22 F.4th 204, 232 (D.C. Cir. 2022). Exceptions occur when the Fifth Amendment does not cover a particular entity, such as States of the Union or sovereign foreign states, not when foreign persons are involved. South Carolina v. Katzenbach, 383 U.S. 301, 323-324, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966); Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82, 96 (D.C. Cir. 2002).
With respect to foreign defendants, a plaintiff's complaint must "make a prima facie showing of the pertinent jurisdictional facts." Livnat, 851 F.3d at 56-57 (citation omitted); Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) ( that a complaint's allegations should "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face' "). Resolving factual disputes in favor of the plaintiff, such jurisdictional facts are plausible if they allow a "court to draw the reasonable inference that the defendant" intended to target the United States. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). The Fifth Amendment's Due Process Clause requires "meaningful 'contacts, ties, or relations[ ]' " with the United States to...
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