The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2024 Decided July 9, 2024
No. 22-7150
SAAD ALJABRI, DR.,
APPELLANT
v.
MOHAMMED BIN SALMAN BIN ABDULAZIZ AL SAUD, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-02146)
Lindsay Harrison argued the cause for appellant. With her
on the briefs were Jason P. Hipp and Andrianna Kastanek.
Michael K. Kellogg argued the cause for appellees. With
him on the brief were William W. Taylor, III, Margarita K.
O=Donnell, Gregory G. Rapawy, Barry J. Pollack, Jessica N.
Carmichael, Mitchell R. Berger, Benjamin D. Wood, and Alex-
andra E. Chopin.
Before: RAO and CHILDS, Circuit Judges, and ROGERS,
Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge CHILDS.
CHILDS, Circuit Judge: Appellant Dr. Saad Aljabri
(“Plaintiff”) served in the government of Saudi Arabia for
thirty-nine years primarily as an expert in national security and
counterterrorism. Because of his close contacts with U.S.
intelligence officials and his role as a trusted advisor to former
Saudi Crown Prince and Minister of the Interior Mohammed
bin Nayef (“bin Nayef”), Plaintiff alleges that a group of
individuals led by current Saudi Prime Minister and Crown
Prince Mohammed bin Salman bin Abdulaziz al Saud (“bin
Salman”) plotted to kill Plaintiff after he relocated to Canada.
In response to various motions to dismiss Plaintiff’s claims, the
district court found that it lacked personal jurisdiction over
most of the defendants, and Plaintiff had failed to state a claim
against two others, Mohammed Alhamed and Layla
Abuljadayel (together the “U.S.-based students”).1 Aljabri v.
al Saud, Civ. A. No. 20-2146, 2022 WL 4598519, at *17–19
(D.D.C. Sept. 30, 2022). Plaintiff appeals. Upon de novo
review, we affirm dismissal of the claims against bin Salman
and the U.S.-based students; vacate the district court’s
dismissal of claims against Bader Alasaker and Saud Alqahtani
(together the “top aides”); and remand for jurisdictional
discovery.
I.
As alleged in his amended complaint, Plaintiff began
working for the Saudi government in 1976, rising to become a
senior official of the Saudi Ministry of Interior and an advisor
1
In a separate order, the district court dismissed Bijad Alharbi for
Plaintiff’s failure to timely effect service under Federal Rule of Civil
Procedure 4(m).
3
to bin Nayef.2 After the 9/11 terrorist attacks, Plaintiff helped
Saudi Arabia become a key counterterrorism partner to the
United States while developing close cooperative relationships
with U.S. intelligence officials. In 2015, Plaintiff was
terminated from his government position partly due to this
relationship.
The Crown Prince of Saudi Arabia is first in the line of
succession to replace the king. On June 20, 2017, bin Salman
usurped the position of Crown Prince of Saudi Arabia from bin
Nayef, who was placed under house arrest. Bin Salman
believed he needed the support of the United States to ascend
to the Saudi throne and bin Nayef was an impediment to that
happening based on his relationships with U.S. officials.
During the month preceding this change in the Saudi
power structure, Plaintiff became concerned for his well-being
because of his relationships with bin Nayef and the U.S.
intelligence community, and prior conflicts with bin Salman.
So, on May 17, 2017, Plaintiff fled from Saudi Arabia to
Turkey. Upon learning about Plaintiff’s departure from the
country, bin Salman used various measures to lure Plaintiff
back to Saudi Arabia. These efforts included sending text
messages demanding Plaintiff’s return, prohibiting his son and
daughter from leaving the country to attend school, ending
another son’s scholarship payments, initiating a Red Notice
request with INTERPOL for Plaintiff’s arrest, and other
threatening behavior. When Plaintiff learned bin Salman was
pressuring Turkey to return him to Saudi Arabia, Plaintiff fled
to Toronto, Canada, on September 12, 2017, but Plaintiff told
bin Salman he was traveling to Boston, Massachusetts.
2
At the pleading stage, we accept all facts stated in the applicable
amended complaint as true. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 556 (2007).
4
When Plaintiff did not return to Saudi Arabia, bin Salman
set out to find him. Bin Salman activated a network of Saudi
students in the United States through bin Salman’s self-funded
Prince Mohammed bin Salman bin Abdulaziz Foundation
(“MiSK”). Importantly, Alasaker was the executive director of
MiSK and Saud Alqahtani was a member of MiSK’s board of
directors.3 The top aides used MiSK to cultivate a network of
Saudi students in the United States by coordinating with
student clubs and hosting leadership events and/or cultural
programs. Plaintiff claimed that the top aides used MiSK to
recruit spies from its student clubs. Bin Salman and Alasaker
activated three student spies, Youssef Alrajhi, and the U.S.-
based students, to find Plaintiff. These students allegedly
gained information regarding Plaintiff’s location by speaking
with his family living in the United States.
By December 2017, bin Salman knew Plaintiff was in
Canada. Bijad Alharbi, an acquaintance of Plaintiff through
their connection to bin Nayef, traveled to Toronto to persuade
Plaintiff to return to Turkey, where he would be less lonely and
could visit his family.
Almost a year later, on October 15, 2018, bin Salman
devised a plan to kill Plaintiff because he refused to return to
Saudi Arabia. Bin Salman activated the “Tiger Squad,” a
private death squad made up of about fifty intelligence,
military, and forensic operatives from different branches of the
3
Plaintiff identified Bader Alasaker as “one of . . . bin Salman’s clos-
est aides” and said Alasaker “is known as . . . bin Salman’s ‘invisible
hand.’” Amend. Compl. ¶ 40 (JA.45) (note omitted). Plaintiff called
Saud Alqahtani bin Salman’s “top aide,” “chief propagandist,” “one
of his chief enforcers,” and “right-hand man.” Amend. Compl. ¶¶
48, 49 (JA.50), 55 (JA.53).
5
Saudi government.4 The Tiger Squad first tried to enter Canada
individually, acting as tourists, but were stopped when customs
found forensic tools in their luggage and group photos proving
that the individuals knew each other. Ultimately, only one
member could enter Canada, thereby foiling the plot.
Bin Salman did not give up. In May 2020, he obtained a
fatwa—a ruling by religious authorities—endorsing the killing
of Plaintiff. To execute the fatwa, bin Salman planned to send
agents by land through the United States to Canada. In fact, a
Canadian security agency warned Plaintiff about credible and
imminent threats to his life that same year. Canadian Law
Enforcement considered the threat so concrete that an
“Emergency Response Team” was stationed outside Plaintiff’s
house, and he was instructed to cancel all meetings. Other
sources also warned Plaintiff of credible attempts on his life
and the continued existence of a high level of threat.
After surviving the failed attempts on his life, Plaintiff
filed a complaint on August 6, 2020, against bin Salman, other
Saudi officials, several U.S.-based individuals, MiSK, both
known Tiger Squad members, and eleven unknown John Doe
members of the Tiger Squad. He alleged claims for: (1)
attempted extrajudicial killing in violation of the Torture
Victim Protection Act, 28 U.S.C. § 1350 note, (2) conspiracy
to commit an extrajudicial killing, which constitutes a tort
committed in violation of the law of nations under the Alien
Tort Statute, 28 U.S.C. § 1350, and (3) a claim for intentional
infliction of emotional distress. After bin Salman, Alrajhi,
Alhamed, Abuljadayel, Saud Alqahtani, Ahmed Alassiri,
Mishal Fahad Alsayed, Khalid Ibrahim Abdulaziz Algasem,
4
For further descriptive context, Plaintiff asserts that the members
of the Tiger Squad carried out the infamous 2018 assassination of
Saudi journalist Jamal Khashoggi at the Saudi consulate in Istanbul,
Turkey.
6
Saud Abdulaziz Alsaleh, Bandar Saeed Alhaqbani, Ibrahim
Hamad Abdulrahman Alhomid, Alasaker, and MiSK moved to
dismiss the complaint, Plaintiff filed an amended complaint on
February 4, 2021, to supplement his allegations. Bin Salman,
Alrajhi, Alhamed, Abuljadayel, Hani Fakri Hamed, Saud
Alqahtani, Alassiri, Alsayed, Algasem, Alsaleh, Alhaqbani,
Alhomid, Ahmed Abdullah Fahad Albawardi, Bader Mueedh
Saif Alqahtani, Alasaker, and MiSK then moved to dismiss the
amended complaint.
On September 30, 2022, the district court dismissed (1) the
claims against bin Salman, Alasaker, Saud Alqahtani, Alassiri,
MiSK, Alrajhi, Hamed, Alsaleh, Alsayed, Algasem,
Alhaqbani, Alhomid, Albawardi, and Bader Alqahtani for lack
of personal jurisdiction; and (2) the claims against the U.S.-
based students for failure to state a claim. In reaching this
determination, the district court was unpersuaded by Plaintiff’s
allegations that bin Salman purposefully targeted the United
States by plotting to kill Plaintiff and thereby harming U.S.
intelligence interests, or, through the actions of third parties,
“directed an agent of his to look for [Plaintiff] in the United
States.” Aljabri, 2022 WL 4598519, at *8. However, even if
Plaintiff could “aggregate factual allegations concerning
multiple defendants in order to demonstrate personal
jurisdiction over” bin Salman, id. (citation omitted), the district
court found that due to the burden on bin Salman to litigate in
the United States and Saudi Arabia’s greater procedural and
substantive interest, the court’s exercise of personal
jurisdiction over bin Salman would not meet “traditional
notions of fair play and substantial justice.” Id. at *13 (quoting
Asahi Metal Indus. Co. v. Super. Ct. of Cal., Solano Cty., 480
U.S. 102, 105 (1987)). As to Alasaker, Saud Alqahtani,
Alassiri, and the members of the Tiger Squad, the district court
reiterated that their involvement in a plot to kill Plaintiff did
not target the United States. Moreover, none of their contacts
7
related to the lawsuit, and the court’s exercise of jurisdiction
over them would not comport with “traditional notions of fair
play and substantial justice.” Id. at *14 (quoting Asahi, 480
U.S. at 105). In the same vein, the district court also
determined that the District of Columbia’s long-arm statute did
not provide “specific” personal jurisdiction over MiSK,
Alrajhi, or Hamed because Plaintiff failed to sufficiently align
their alleged business activities in D.C. with the plot against his
life. Id. at *15–16.
Next, the district court addressed Plaintiff’s assertion that
dismissal should not occur without jurisdictional discovery.
Specifically, Plaintiff requested discovery on communications
between and among bin Salman, Alasaker, Saud Alqahtani,
Alassiri, MiSK, the Tiger Squad, and other individuals based
in the United States; information regarding the Tiger Squad’s
travel in the United States; a list of contacts for MiSK, Alrajhi,
and Hamed; and details regarding bin Salman’s May 2020
directive to his agents to kill Plaintiff. The district court denied
Plaintiff’s request for jurisdictional discovery on the basis that
any information revealed in the discovery would not change the
court’s conclusion that exercising personal jurisdiction over
bin Salman, Alasaker, Saud Alqahtani, Alassiri, and the Tiger
Squad defendants would be unreasonable. The district court
further found that Plaintiff’s requests were “overly broad,”
conjectural, speculative, and burdensome to the court. Id. at
*17 (citation omitted).
Finally, the district court concluded that despite the failure
of the U.S.-based students to raise an objection to personal
jurisdiction, thereby waiving that defense, Plaintiff did not
adequately allege any claim against either individual. Id. at
*18. The district court observed that the claims against the
U.S.-based students “hinge[d] on a theory of secondary
liability—that is, that Alhamed and Abuljadayel are liable
8
because they conspired and aided and abetted bin Salman’s plot
to kill [Plaintiff].” Id. In this regard, dismissal was appropriate
because the amended complaint’s allegations did “not allow the
Court to infer that either Alhamed or Abuljadayel had any
relationship with bin Salman, much less that they knew that
their alleged conduct was supposedly assisting a plot by bin
Salman to kill a former Saudi official.” Id. at *19. Simply put,
the alleged facts did not show that the U.S.-based students
knew of a plot to kill Plaintiff.
Plaintiff timely appealed the district court’s decision.
II.
We have appellate jurisdiction under 28 U.S.C. § 1291.
We review the district court’s dismissal for lack of personal
jurisdiction and failure to state a claim de novo, accepting as
true Plaintiff’s factual allegations and drawing all reasonable
inferences in his favor. Urquhart-Bradley v. Mobley, 964 F.3d
36, 43 (D.C. Cir. 2020); Moore v. Valder, 65 F.3d 189, 192
(D.C. Cir. 1995); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In addition, we review the district court’s denial of
jurisdictional discovery for abuse of discretion. Lewis v.
Mutond, 62 F.4th 587, 590 (D.C. Cir. 2023).
A.
We turn first to a contention by bin Salman that
notwithstanding the district court’s personal jurisdiction
decision, he is now entitled to absolute head of state immunity
after his elevation to the position of Prime Minister of Saudi
Arabia on September 27, 2022.5
5
Although the district court issued its opinion three days after bin
Salman’s appointment to Prime Minister, the court was not made
aware of that occurrence by the parties. See Appellees’ Br. 18.
9
Head of state immunity is an extension of the common law
doctrine of foreign sovereign immunity. See, e.g., Manoharan
v. Rajapaksa, 711 F.3d 178, 179 (D.C. Cir. 2013). “[C]ommon
law foreign immunity distinguishes between two types of
immunity: status-based and conduct-based immunity.” Lewis
v. Mutond, 918 F.3d 142, 145 (D.C. Cir. 2019). “Status-based
immunity is reserved for diplomats and heads of state and
attaches ‘regardless of the substance of the claim.’” Id.
(citation omitted). “[T]he rationale of head-of-state immunity
is to promote comity among nations by ensuring that leaders
can perform their duties without being subject to detention,
arrest or embarrassment in a foreign country’s legal system.”
Yousuf v. Samantar, 699 F.3d 763, 769 (4th Cir. 2012) (citation
omitted). “A head-of-state recognized by the United States
government is absolutely immune from personal jurisdiction in
Accordingly, the district court did not address the head of state
immunity issue. In the D.C. Circuit, “it is the general rule that a
federal appellate court does not consider an issue not passed upon
below,” but “the matter of what questions may be taken up and
resolved for the first time on appeal is one left primarily to the
discretion of the courts of appeals, to be exercised on the facts of
individual cases.” Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp.,
940 F.2d 685, 697 (D.C. Cir. 1991) (cleaned up). “We have stated
that in exercising this discretion we will look to factors such as
whether the issue in question has been fully briefed by the parties
and whether decision of the issue would be aided by the development
of a factual record in the district court.” Id. Based on our review of
the briefing and the current factual record, we exercise our discretion
to consider head of state immunity during this appeal. See Porup v.
CIA, 997 F.3d 1224, 1238–39 (D.C. Cir. 2021) (“Because ‘our
review . . . is de novo[,] . . . we have the same record before us as did
the district court [and] we are just as capable of evaluating the
[CIA]’s [declarations] . . . as is the court below.’ Thus, rather than
remanding solely for the District Court to pass upon segregability,
we will exercise our discretion to make such a determination in the
first instance.” (alterations in original) (internal citations omitted)).
10
United States courts unless that immunity has been waived by
statute or by the foreign government recognized by the United
States.” Id. (citation omitted).
“Conduct-based immunity is afforded to ‘any public
minister, official, or agent of the state with respect to acts
performed in his official capacity if the effect of exercising
jurisdiction would be to enforce a rule of law against the
state.’” Lewis, 918 F.3d at 145 (cleaned up). “With respect to
conduct-based immunity, foreign officials are immune from
‘claims arising out of their official acts while in office.’”
Yousuf, 699 F.3d at 774 (citations omitted). “This type of
immunity stands on the foreign official’s actions, not his or her
status, and therefore applies whether the individual is currently
a government official or not.” Id.
To determine whether a foreign official is entitled to
immunity, we conduct a two-part test. Broidy Cap. Mgmt. LLC
v. Muzin, 12 F.4th 789, 798 (D.C. Cir. 2021). First, we assess
whether the U.S. State Department has filed a suggestion of
immunity in the case. Samantar v. Yousuf, 560 U.S. 305, 311
(2010). If the Executive Branch has spoken, we defer to its
determination, and we lack jurisdiction over the defendant. Id.
If the Executive Branch has not weighed in, we independently
assess whether “all the requisites for such immunity exist[].”
Id. (citation omitted). Out of respect for the Executive
Branch’s constitutional role in foreign relations, however, our
review relies heavily on State Department “policy and
practice,” as shown in “suggestions of immunity and
statements of interest in other cases.” Broidy, 12 F.4th at 798.
If we find the Executive Branch’s policies favor giving that
individual head of state status, we again lack jurisdiction.
Samantar, 560 U.S. at 312.
11
Here, pertinent to our analysis, Saudi Arabia, through its
embassy, requested a suggestion of immunity from the U.S.
State Department on October 8, 2020. The record does not
indicate that the State Department has responded to this request
for a suggestion of immunity. However, the State Department
filed a suggestion of immunity regarding bin Salman in Cengiz
v. bin Salman, Civ. A. No. 20-03009, ECF No. 53 (D.D.C.
Nov. 17, 2022), which states in relevant part that “Mohammed
bin Salman, the Prime Minister of the Kingdom of Saudi
Arabia, is the sitting head of government and, accordingly, is
immune from . . . suit.” JA.342. The Cengiz suggestion of
immunity further states, “bin Salman possesses immunity from
. . . suit as the Prime Minister of the Kingdom of Saudi Arabia
while he holds that office.” JA.343 ¶ 1. Furthermore, “this
determination is controlling and is not subject to judicial
review.” Id. Because the Cengiz suggestion of immunity is
filed in a different case, it is not enough to satisfy the first step
of the Samantar analysis—and obviously, no suggestion has
been filed here. However, we place great weight on the Cengiz
suggestion in our analysis of the second step of the foreign
immunity test. See Muzin, 12 F.4th at 798. To this point, bin
Salman still holds the office of Prime Minister—and Plaintiff
has not meaningfully suggested that bin Salman’s status has
changed since the Cengiz statement—thus, we will follow the
State Department’s prior suggestion of immunity and affirm
the district court’s dismissal of Plaintiff’s claims against bin
Salman.
B.
We next turn to Plaintiff’s argument that he was entitled to
jurisdictional discovery to supplement his allegations. The
federal courts “are courts of limited jurisdiction” and cannot
hear cases without, among other things, personal jurisdiction
over the parties. Kokkonen v. Guardian Life Ins. Co. of Am.,
511 U.S. 375, 377 (1994). Generally, to have personal
12
jurisdiction over a defendant, the Fifth Amendment requires
that defendant have “minimum contacts” with the United States
that satisfy “traditional notions of fair play and substantial
justice.” Livnat v. Palestinian Auth., 851 F.3d 45, 48, 54 (D.C.
Cir. 2017) (cleaned up). However, it is not always easy for a
plaintiff to show a defendant’s minimum contacts in a
complaint.
The Supreme Court has held that “where issues arise as to
jurisdiction . . . , discovery is available to ascertain the facts
bearing on such issues.” Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 351 n.13 (1978). In this regard, if allowed
jurisdictional discovery, plaintiffs facing motions to dismiss
for lack of personal jurisdiction can potentially uncover
revealing information they would not have known otherwise.
See Urquhart-Bradley, 964 F.3d at 48–49. Moreover, the
burden to demonstrate entitlement to jurisdictional discovery is
not onerous, only requiring that a plaintiff “have at least a good
faith belief that such [jurisdictional] discovery will enable it to
show that the court has personal jurisdiction over the
defendant.” Williams v. Romarm, SA, 756 F.3d 777, 786 (D.C.
Cir. 2014) (citation omitted).
Here, the district court abused its discretion in not allowing
jurisdictional discovery on the record before it. Plaintiff
alleged a good-faith belief that communications between
Alasaker, Saud Alqahtani, and the U.S.-based Saudis could
establish the minimum contacts necessary to exercise personal
jurisdiction over him. JA.330. That said, we acknowledge that
the district court was properly cautious when considering
Plaintiff’s jurisdictional discovery requests “in light of other
factors” bearing on “fair play and substantial justice.” Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985) (citation
omitted). Nevertheless, while the district court properly denied
most of his requests, it abused its discretion in finding
13
Plaintiff’s claims regarding the communications between
Alasaker, Saud Alqahtani, and the other U.S.-based Saudis
were clearly frivolous. See FC Inv. Grp. LC v. IFX Mkts., 529
F.3d 1087, 1094 (D.C. Cir. 2008) (“[A] request for
jurisdictional discovery cannot be based on mere conjecture or
speculation.”). Within the 179 pages and 414 paragraphs of his
amended complaint, Plaintiff set forth allegations of his death
being the object of a broad conspiracy involving Saud
Alqahtani, Alasaker, and the U.S.-based Saudis. Evidence of
an agreement between those defendants could both establish
minimum contacts with the United States and affect the
fairness of exercising personal jurisdiction over Saud
Alqahtani and Alasaker. See Burger King, 471 U.S. at 476.
Therefore, the district court abused its discretion in denying
Plaintiff the opportunity to conduct jurisdictional discovery
regarding the communications between these individuals.
*****
Accordingly, we affirm the district court’s dismissal of all
claims against Saudi Prime Minister Mohammed bin Salman
bin Abdulaziz al Saud, albeit for a different reason: his
immunity from suit. See Parsi v. Daioleslam, 778 F.3d 116,
126 (D.C. Cir. 2015) (“Ordinarily, a court of appeals can affirm
a district court judgment on any basis supported by the record,
even if different from the grounds the district court cited.”).
However, we hold that the district court did abuse its discretion
in denying Plaintiff’s motion for jurisdictional discovery
outright. We therefore reverse the district court’s order
denying jurisdictional discovery, vacate the judgment of
dismissal with respect to Bader Alasaker and Saud Alqahtani,
and remand for jurisdictional discovery described above. The
district court may exercise its broad discretion to control the
scope of discovery and the burden on high-ranking Saudi
officials. We express no opinion on the other jurisdictional
14
issues, and we affirm the dismissal of claims against
Mohammed Alhamed and Layla Abuljadayel for the reasons
given by the district court, supra at 7–8. Still, the jurisdictional
discovery may reveal facts which could cure the defect in the
claims against Alhamed and Abuljadayel. Thus, we remand
with instructions to dismiss those claims without prejudice to
refiling by Plaintiff.
So ordered.