United States Court of Appeals, District of Columbia Circuit
Rivka Livnat, Individually and as Personal Representative of the Estate of Ben-Yosef Livnat, et al., Appellants
Palestinian Authority, a/k/a The Palestinian Interim Self-Government Authority, Appellee
from the United States District Court for the District of
Columbia (No. 1:14-cv-00668) (No. 1:14-cv-00669)
Jessica P. Weber argued the cause for appellants. With her on
the briefs were Andrew D. Levy and Alan I. Baron.
Raven-Hansen and David A. Reiser were on the brief for amici
curiae Former Federal Law Enforcement Officials in support of
Mitchell R. Berger argued the cause for appellee. With him on
the brief were Pierre H. Bergeron, John Burlingame, Alexandra
E. Chopin, and Gassan A. Baloul.
Before: Griffith and Wilkins, Circuit Judges, and Silberman,
Senior Circuit Judge.
Griffith, Circuit Judge
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.
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.
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).
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.
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.
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).
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
International Shoe Co. v. Washington, 326 U.S. 310
(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 (quoting Milliken
v. Meyer, 311 U.S. 457, 463 (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 (1985)).
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
(1966), that States of the Union are not "persons"
under the Clause. Id. at 323-24. 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.
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.
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' ...