Mwani, Odilla Mutaka v. Bin Ladin, Usama

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 14, 2005 Decided August 5, 2005

No. 04-5266

ODILLA MUTAKA MWANI, ET AL.,

APPELLANTS

v.

OSAMA BIN LADEN AND

AFGHANISTAN, A FOREIGN STATE,

APPELLEES

Appeal from the United States District Court

(USDC) for the District of Columbia

(No. 99cv00125)

Philip M. Musolino argued the cause and filed the briefs for

appellants.

R. Michael Smith argued the cause and filed the brief for

appellee. Carolyn M. Welshhans entered an appearance.

Before: EDWARDS, TATEL, and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

2

GARLAND, Circuit Judge: On August 7, 1998, a devastating

truck bomb exploded outside the American embassy in Nairobi,

Kenya. The blast killed more than 200 people, including 12

Americans, and wounded more than 4000 others. Most of the

casualties were Kenyan. The plaintiffs in this case are all

Kenyan: victims, relatives of victims, and businesses harmed in

the attack. They sued defendants Osama bin Laden and al

Qaeda for orchestrating the bombing, and defendant Afghanistan

for providing logistical support to bin Laden and al Qaeda. The

district court dismissed the claims against Afghanistan for lack

of subject matter jurisdiction, and those against bin Laden and

al Qaeda for lack of personal jurisdiction.

Although we agree that the Foreign Sovereign Immunities

Act bars the plaintiffs’ claims against Afghanistan, we reverse

the dismissal of their actions against bin Laden and al Qaeda.

Those defendants “engaged in unabashedly malignant actions

directed at [and] felt” in this country. GTE New Media Servs.,

Inc v. Bellsouth Corp, 199 F.3d 1343, 1349 (D.C. Cir. 2000).

Bin Laden and al Qaeda should therefore “reasonably anticipate

being haled into court” here by those injured as a result of those

actions, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-74

(1985), regardless of the plaintiffs’ nationality.

I

In early 1999, Odilla Mutaka Mwani and his fellow

plaintiffs filed this action in the United States District Court for

the District of Columbia. They sought compensatory damages

and other relief from Osama bin Laden, the terrorist organization

known as al Qaeda, and the nation of Afghanistan for the

injuries they sustained in the embassy bombing.1 The plaintiffs

1

The plaintiffs also named the United States and Sudan as

defendants. The district court dismissed those claims, and the

3

predicated subject matter jurisdiction for their claims against

Afghanistan on the Foreign Sovereign Immunities Act (FSIA),

28 U.S.C. §§ 1602 et seq., and for those against bin Laden and

al Qaeda on the Alien Tort Claims Act (ATCA), 28 U.S.C. §

1350. The latter provides that “[t]he district courts shall have

original jurisdiction of any civil action by an alien for a tort

only, committed in violation of the law of nations or a treaty of

the United States.” Id.

On February 12, 1999, the plaintiffs moved to serve

defendants bin Laden and al Qaeda by publication. On August

2, 1999, the district court granted the plaintiffs leave to serve

those defendants by “publishing. . . notice for six weeks in the

Daily Washington Law Reporter, the International Herald

Tribune, and Al-Quds Al-Arabi (in Arabic).” Mwani v. United

States, No. 99-125, Order at 4 (D.D.C. Aug. 2, 1999) (“August

1999 Order”). The plaintiffs later advised the court that the

notice had run in all three newspapers, as well as in two

additional East African publications.

To no one’s surprise, neither bin Laden nor al Qaeda

responded. On August 11, 2000, the plaintiffs moved for entry

of default against them. Because the district court was not

satisfied that it had personal jurisdiction over bin Laden and al

Qaeda, it denied the motion without prejudice, granting

plaintiffs additional time to pursue the issue. See Mwani v.

United States, No. 99-125, Mem. Op. at 2-3, 5 (D.D.C. Mar. 15,

2001) (“March 2001 Opinion”). The plaintiffs responded with

a renewed motion for entry of default in July 2001, and with

supplemental memoranda in August, September, and October of

that year. In these papers, the plaintiffs argued that bin Laden

and al Qaeda had sufficient nationwide contacts with the United

States to satisfy constitutional limits on the court’s exercise of

plaintiffs have not appealed.

4

jurisdiction.2

On September 30, 2002, the district court held that, to enter

a default, it “must have jurisdiction over the party against whom

the judgment is sought,” and the plaintiffs must demonstrate

such jurisdiction by a preponderance of the evidence. Mwani v.

United States, No. 99-125, Mem. Op. at 2 (D.D.C. Sept. 30,

2002) (“September 2002 Opinion”) (internal quotation marks

omitted). Applying those principles, the court concluded that

the plaintiffs had “failed to sustain their burden of proving that

this Court can exercise personal jurisdiction over” bin Laden

and al Qaeda. Id. That was so, the court said, both because of

the quality of the plaintiffs’ evidence, and because of its failure

to establish sufficient contacts between the defendants and the

forum to permit the exercise of jurisdiction under the District of

Columbia’s long-arm statute and the U.S. Constitution. See id.

at 9-11.

The dismissal of the plaintiffs’ claims against bin Laden and

al Qaeda left Afghanistan as the only remaining defendant. The

plaintiffs effected service of process by certified mail on

Afghanistan’s Ministry of Foreign Affairs, through that

country’s embassy in the District of Columbia. An appearance

was entered by the Transitional Islamic State of Afghanistan

(hereinafter Afghanistan) -- “the interim government for

Afghanistan established by the Bonn Accords of December

2

The plaintiffs offered two additional bases for personal

jurisdiction, one grounded in the concept of “universal jurisdiction”

and the other in the “effects doctrine.” Pls.’ Renewed Mot. for Entry

of Default at 19, 21 (July 16, 2001). The district court rejected both,

as well as the contention that the defendants’ nationwide contacts were

sufficient to permit the exercise of jurisdiction. Because we conclude

that the nationwide contacts were in fact sufficient, we do not address

the plaintiffs’ additional bases.

5

2002, which were implemented under the United Nations’

auspices after the Taliban’s armed forces were defeated by an

international coalition and the Northern Alliance.” Appellees

Br. at 4. Afghanistan then moved to dismiss the plaintiffs’

claims for lack of personal and subject matter jurisdiction, citing

the FSIA.

In June 2004, the district court granted Afghanistan’s

motion to dismiss, rejecting the plaintiffs’ contention that the

case fell within two exceptions to the FSIA -- for implicit waiver

and commercial activities. Mwani v. United States, No. 99-125,

Mem. Op. at 12 (D.D.C. June 22, 2004) (“June 2004 Opinion”).

At the same time, it denied the plaintiffs’ request for

jurisdictional discovery because it did “‘not see what facts

additional discovery could produce that would affect [its]

jurisdictional analysis.’” Id. at 11 (quoting Goodman Holdings

v. Rafidain Bank, 26 F.3d 1143, 1147 (D.C. Cir. 1994)).

The plaintiffs filed a timely appeal. In Part II, we consider

their contention that the district court erred in dismissing the

claims against bin Laden and al Qaeda. In Part III, we address

their challenge to the dismissal of the claims against

Afghanistan.

II

We review the dismissal of a claim for lack of jurisdiction

de novo. See, e.g., Gorman v. Ameritrade Holding Corp., 293

F.3d 506, 509 (D.C. Cir. 2002). In evaluating the district court’s

dismissal of the claims against bin Laden and al Qaeda, we must

consider two distinct determinations made by the court. The

first is the appropriate burden and standard of proof for

establishing personal jurisdiction over an absent defendant at

this stage of the litigation. The second is whether the plaintiffs

satisfied those requirements.

6

A

The district court correctly noted that the entry of a default

judgment3 is not automatic, and that a court should satisfy itself

that it has personal jurisdiction before entering judgment against

an absent defendant. March 2001 Opinion at 2.4 The court

acknowledged that when ruling upon personal jurisdiction

without an evidentiary hearing, a court ordinarily demands only

a prima facie showing of jurisdiction by the plaintiffs.

September 2002 Opinion at 6.5 It is only if the court takes

evidence on the issue or rules on the personal jurisdiction

question in the context of a trial that a heightened,

preponderance of the evidence standard applies. Id.6

Nonetheless, the district court concluded that in this case it

3

The district court intentionally collapsed the two stages of

default, treating the plaintiffs’ motion for entry of default by the clerk,

see FED. R. CIV. P. 55(a), as a motion for entry of a default judgment

by the court, see id. 55(b)(2). See 10A CHARLES ALAN WRIGHT,

ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND

PROCEDURE §§ 2682, 2685 (3d ed. 1998) (hereinafter WRIGHT &

MILLER).

4

See Dennis Garberg & Assocs. v. Pack-Tech Int’l Corp., 115

F.3d 767, 772 (10th Cir. 1997) (“[A] district court must determine

whether it has jurisdiction over the defendant before entering

judgment by default against a party who has not appeared in the

case.”); 10A WRIGHT & MILLER § 2682, at 14.

5

See Edmond v. United States Postal Serv. Gen. Counsel, 949

F.2d 415, 424 (D.C. Cir. 1991); First Chi. Int’l v. United Exch. Co.,

836 F.2d 1375, 1378-791 (D.C. Cir. 1988); Dennis Garberg &

Assocs., 115 F.3d at 773; 2 JAMES W. MOORE, MOORE’S FEDERAL

PRACTICE § 12.31[5] (3d ed. 2002) (hereinafter MOORE’S).

6

See Dennis Garberg & Assocs., 115 F.3d at 773; MOORE’S §

12.31[5].

7

should require the plaintiffs to establish jurisdiction by a

preponderance of the evidence, because it was “on the cusp of

a default judgment proceeding . . . , and . . . Defendants are not

presently before the Court.” September 2002 Opinion at 6. And

it further determined that, to satisfy that burden, the plaintiffs

would have to proffer evidence meeting the standards of

admissibility ordinarily reserved for the summary judgment and

trial stages of litigation. See id. at 12-14.

We reject this approach. The absence of the defendant is

precisely the reason the Federal Rules of Civil Procedure

provide for default judgments, which safeguard plaintiffs “when

the adversary process has been halted because of an essentially

unresponsive party. In that instance, the diligent party must be

protected lest he be faced with interminable delay and continued

uncertainty as to his rights.” Jackson v. Beech, 636 F.2d 831,

836 (D.C. Cir. 1980) (internal quotation marks omitted). Far

from constituting a rationale for increasing the plaintiffs’ burden

of proof, if anything the absence of the defendants counsels

greater flexibility toward the plaintiffs because it impedes their

ability to obtain jurisdictional discovery. There is thus no

reason for the district court to insist upon an evidentiary hearing,

and it did not do so in this case.

In the absence of an evidentiary hearing, although the

plaintiffs retain “the burden of proving personal jurisdiction,

[they] can satisfy that burden with a prima facie showing.”

Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d

415, 424 (D.C. Cir. 1991) (citation omitted). Moreover, to

establish a prima facie case, plaintiffs are not limited to evidence

that meets the standards of admissibility required by the district

court. Rather, they may rest their argument on their pleadings,

bolstered by such affidavits and other written materials as they

8

can otherwise obtain.7

Adherence to these principles does not unduly disadvantage

those absent defendants who truly are beyond the power of the

court. Entry of a default judgment is not the court’s final say on

a matter. Rule 55(c) provides that “[f]or good cause shown the

court may set aside . . . a judgment by default . . . in accordance

with Rule 60(b).” FED. R. CIV. P. 55(c). Under the rule, a

defendant can successfully challenge a default judgment in the

rendering court on the ground of lack of personal jurisdiction.

See, e.g., Combs v. Nick Garin Trucking, 825 F.2d 437, 438

(D.C. Cir. 1987). And a defendant is “always free to ignore the

judicial proceedings, risk a default judgment, and then challenge

that judgment on jurisdictional grounds in a collateral

proceeding.” Insurance Corp. of Ireland, Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 706 (1982); see 10 JAMES W.

MOORE, MOORE’S FEDERAL PRACTICE §§ 55.50[2][b][i] (3d ed.

2005).

B

Having set forth the appropriate burden and standard of

proof, we now consider whether the plaintiffs have satisfactorily

shown that the district court may exercise personal jurisdiction

over bin Laden and al Qaeda. In the first section below, we

address the sources of authority for such an exercise. In the

second section, we consider whether the exercise of that

jurisdiction would contravene constitutional due process.

7

See, e.g., Naartex Consulting Corp. v. Watt, 722 F.2d 779, 787-

88 (D.C. Cir. 1983); Glencore Grain Rotterdam B.V. v. Shivnath Rai

Harnarain Co., 284 F.3d 1114, 1119 (9th Cir. 2002); Ball v.

Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.

1990).

9

1

“Before a federal court may exercise personal jurisdiction

over a defendant, the procedural requirement of service of

summons must be satisfied.” Omni Capital Int’l, Ltd. v. Rudolf

Wolff & Co., 484 U.S. 97, 104 (1987). The district court did not

dispute that the plaintiffs had accomplished service by an

acceptable method. Rule 4 of the Federal Rules sets forth the

various methods by which a summons may be served in federal

court proceedings, and Rule 4(f) specifically addresses

“[s]ervice upon individuals in a foreign country.” It provides,

in relevant part:

Unless otherwise provided by federal law, service upon

an individual from whom a waiver has not been

obtained and filed . . . may be effected in a place not

within any judicial district of the United States . . . by

. . . means not prohibited by international agreement as

may be directed by the court.

FED. R. CIV. P. 4(f)(3) (emphasis added).

Here, the district court authorized the plaintiffs to serve bin

Laden and al Qaeda by publication. The court observed that

their “address is not known, nor is it easily ascertainable,”

August 1999 Order at 3, and that bin Laden had published at

least one fatwa in Al-Quds Al-Arabi, id. at 4. It concluded that

publication was “reasonably calculated to apprise [bin Laden

and al Qaeda] of the lawsuit and afford them an opportunity to

present their objections.” Id. In Mullane v. Central Hanover

Bank & Trust Co., the Supreme Court sanctioned service by

publication “where it is not reasonably possible or practicable to

give more adequate warning,” holding that, “in the case of

persons missing or unknown, employment of an indirect and

even a probably futile means of notification is all that the

10

situation permits and creates no constitutional bar to a final

decree foreclosing their rights.” 339 U.S. 306, 317 (1950).

The district court correctly recognized, however, that

service of process does not alone establish personal jurisdiction.

As the Supreme Court said in Omni Capital, “[b]efore a court

may exercise personal jurisdiction over a defendant, there must

be more than notice to the defendant.” 484 U.S. at 104. There

also must be “authorization for service of summons on the

defendant,” and a “constitutionally sufficient relationship

between the defendant and the forum.” Id.; see id. at 103 n.6

(noting the distinction between an “objection to the method of

service” and an objection “to amenability to service”). To

determine whether these requirements were satisfied here, the

district court undertook a traditional inquiry. It asked first

whether there was an applicable long-arm statute that would

authorize service on the defendants, and then whether the

application of such a statute would comply with the demands of

due process. See, e.g., GTE, 199 F.3d at 1347; Jungquist v.

Sheikh Sultan bin Khalifa Al Nahyan, 115 F.3d 1020, 1030-31

(D.C. Cir. 1997).

With respect to the availability of a long-arm statute, the

district court said that, “[b]ecause there is no federal equivalent,

District of Columbia law provides the long-arm statute

applicable in this case.” September 2002 Order at 3-4. Citing

one of our precedents, the court declared that the District’s long-

arm statute “is as far-reaching as due process allows, meaning

that only minimum contacts with the District are necessary to

sustain jurisdiction here.” Id. at 4 (quoting Caribbean

Broadcasting System, Ltd. v. Cable & Wireless PLC, 148 F.3d

1080, 1089 (D.C. Cir. 1998)). While it is true that some

provisions of the District’s long-arm statute reach as far as due

11

process permits,8 the only provision applicable here does not.

That provision is D.C. Code § 13-423(a)(4), which provides that

[a] District of Columbia court may exercise personal

jurisdiction over a person . . . as to a claim for relief

arising from the person’s -- . . . causing tortious injury

in the District of Columbia by an act or omission

outside the District of Columbia if he regularly does or

solicits business, engages in any other persistent

course of conduct, or derives substantial revenue from

goods used or consumed, or services rendered, in the

District of Columbia.

D.C. CODE § 13-423(a)(4) (emphasis added). It is unlikely that

the defendants would be susceptible to jurisdiction under that

provision, as no evidence was proffered that meets the italicized

prerequisites. But it is also clear that the Due Process Clause

does not demand the level of contacts required by that provision,

and hence that the provision does not extend as far as the

Clause. Indeed, as the District of Columbia Court of Appeals

has said, in “contrast to § 13-423(a)(1), which we have held to

be coextensive with the Constitution’s due process limit, ‘the

drafters of [§ 13-423(a)(4)] apparently intended that [this]

subsection would not occupy all of the constitutionally available

8

The plaintiffs in Caribbean Broadcasting sought to predicate

jurisdiction on the sale of advertising, which falls under the

“transacting any business” provision of the statute, D.C. CODE § 13-

423(a)(1). That provision states that a District of Columbia “court

may exercise personal jurisdiction over a person . . . as to a claim for

relief arising from the person’s . . . transacting any business in the

District of Columbia.” Id. The District courts have, in fact, concluded

that “the transacting any business provision is coextensive with the

due process clause.” Hummel v. Koehler, 458 A.2d 1187, 1190 (D.C.

1983) (internal quotation marks omitted).

12

space.’” Parsons v. Mains, 580 A.2d 1329, 1331 (D.C. 1990)

(quoting Carr v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987))

(alterations in original).

Prior to 1993, the absence of a state long-arm statute

reaching the defendants’ activity would have denied the district

court personal jurisdiction, since the federal cause of action at

issue here -- the ATCA -- contains no long-arm provision of its

own. As the Supreme Court explained in its 1987 decision in

Omni Capital, at that time the Federal Rules generally

authorized service beyond the territorial limits of the state in

which the district court was situated only when service was

authorized by “a federal statute or . . . the long-arm statute of

[that] State.” Omni Capital, 484 U.S. at 105 (citing then-FED.

R. CIV. P. 4(e)). Indeed, the problem the plaintiffs faced in

Omni Capital was identical to that faced by the plaintiffs here.

Like the ATCA, the statute providing their federal cause of

action (a provision of the Commodity Exchange Act) did not

authorize service on the foreign defendants. And like the

District of Columbia’s long-arm statute, the applicable state

long-arm did not reach the Omni Capital defendants because it

was limited to a defendant who “regularly does or solicits

business, or engages in any other persistent course of conduct,

or derives substantial revenue from goods used or consumed or

services rendered” in the state. Id. at 108 (quoting LA. REV.

STAT. ANN. § 13:3201(d)). Thus, the Federal Rules did not

authorize service of process on the defendants. See id.

In Omni Capital, the Supreme Court rejected a suggestion

by the dissenters in the court below that it should “remed[y] this

‘bizarre hiatus in the Rules’ with an ad hoc authorization of

service of process on [the defendants] based on their contacts

with the United States as a whole.” Id. at 102 (quoting Point

Landing, Inc. v. Omni Capital International, Ltd., 795 F.2d 415,

428 (5th Cir. 1986) (en banc) (Wisdom, J., concurring in part

13

and dissenting in part)). Nonetheless, the Court was “not blind

to the consequences of the inability to serve process on” the

foreign defendants, id. at 111, and it offered the following

suggestion:

A narrowly tailored service of process provision,

authorizing service on an alien in a federal-question

case when the alien is not amenable to service under

the applicable state long-arm statute, might well serve

the ends of [certain] federal statutes. It is not for the

federal courts, however, to create such a rule as a

matter of common law. That responsibility, in our

view, better rests with those who propose the Federal

Rules of Civil Procedure and with Congress.

Id.

Those “who propose the Federal Rules of Civil Procedure”

took notice of the Court’s suggestion, and a revision was

enacted in 1993. Although no case in this Circuit has yet cited

that revision, the Rules now contain their own long-arm

provision which, in some circumstances, eliminates the need to

employ the forum state’s long-arm statute. Rule 4(k)(2) now

provides:

If the exercise of jurisdiction is consistent with the

Constitution and laws of the United States, serving a

summons . . . is also effective, with respect to claims

arising under federal law, to establish personal

jurisdiction over the person of any defendant who is

not subject to the jurisdiction of the courts of general

jurisdiction of any state.

14

FED. R. CIV. P. 4(k)(2).9 Rule 4(k)(2) thus permits a federal

court to exercise personal jurisdiction over a defendant (1) for

a claim arising under federal law, (2) where a summons has been

served, (3) if the defendant is not subject to the jurisdiction of

any single state court, (4) provided that the exercise of federal

jurisdiction is consistent with the Constitution (and laws) of the

United States.

In the instant case, the claims arise under federal law (the

ATCA), and the summons was served by publication pursuant

to Rule 4(f). Whether the exercise of jurisdiction is consistent

with the Constitution turns on whether a defendant has sufficient

contacts with the nation as a whole to satisfy due process. See

FED. R. CIV. P. 4(k) advisory committee’s notes to 1993

amendments. We address that question in Part II.B.2. The

remaining question here is whether bin Laden and al Qaeda are

“subject to the jurisdiction of the courts of general jurisdiction

of any state.” FED. R. CIV. P. 4(k)(2).

9

The Advisory Committee’s Notes for the 1993 amendments to

Rule 4 provide the following background regarding paragraph (k)(2):

This paragraph corrects a gap in the enforcement of federal

law. Under the former rule, a problem was presented when

the defendant was a non-resident of the United States having

contacts with the United States sufficient to justify the

application of United States law . . . , but having insufficient

contact with any single state to support jurisdiction under

state long-arm legislation or meet the requirements of the

Fourteenth Amendment limitation on state court territorial

jurisdiction. . . . In this respect, the revision responds to the

suggestion of the Supreme Court made in Omni Capital . .

..

FED. R. CIV. P. 4(k) advisory committee’s notes to 1993 amendments.

15

Determining whether a defendant is subject to the

jurisdiction of a court “of any state” presents no small problem.

One could, of course, ponderously “traipse through the 50 states,

asking whether each could entertain the suit.” ISI Int’l, Inc. v.

Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th Cir. 2001).

To avoid that daunting task, the Seventh Circuit has adopted the

following burden-shifting framework:

A defendant who wants to preclude use of Rule 4(k)(2)

has only to name some other state in which the suit

could proceed. Naming a more appropriate state would

amount to a consent to personal jurisdiction there

(personal jurisdiction, unlike federal subject-matter

jurisdiction, is waivable). If, however, the defendant

contends that he cannot be sued in the forum state and

refuses to identify any other where suit is possible,

then the federal court is entitled to use Rule 4(k)(2).

Id. We find this resolution eminently sensible, and, like the

Fifth Circuit, we adopt the Seventh Circuit’s view that “so long

as a defendant does not concede to jurisdiction in another state,

a court may use 4(k)(2) to confer jurisdiction.” Adams v.

Unione Mediterranea di Sicurta, 364 F.3d 646, 651 (5th Cir.

2004).

Needless to say, defendants bin Laden and al Qaeda have

not conceded to the jurisdiction of any state. Accordingly, we

now move to the final issue under Rule 4(k)(2).10

10

Although the plaintiffs did not expressly rely on Rule 4(k)(2),

we agree with the Seventh Circuit that “it is best to excuse the

forfeiture.” ISI Int’l, 256 F.3d at 551. “Federal courts are entitled to

apply the right body of law, whether the parties name it or not.” Id.

While the plaintiffs did not name Rule 4(k)(2) specifically, they

certainly identified the correct body of law, asserting “the availability

16

2

Whether the exercise of jurisdiction is “consistent with the

Constitution” for purposes of Rule 4(k)(2) depends on whether

a defendant has sufficient contacts with the United States as a

whole to justify the exercise of personal jurisdiction under the

Due Process Clause of the Fifth Amendment. See FED. R. CIV.

P. 4(k) advisory committee’s notes to 1993 amendments; see

also Adams, 364 F.3d at 651; ISI Int’l, 256 F.3d at 551. The

Clause “protects an individual’s liberty interest in not being

subject to the binding judgments of a forum with which he has

established no meaningful ‘contacts, ties, or relations,’” Burger

King, 471 U.S. at 472 (quoting International Shoe Co. v.

Washington, 326 U.S. 310, 319 (1945)), and “requir[es] that

individuals have ‘fair warning that a particular activity may

subject [them] to the jurisdiction of a foreign sovereign,’” id.

(quoting Shaffer v. Heitner, 433 U.S. 186, 218 (1977)) (second

alteration in original). “Where a forum seeks to assert specific

jurisdiction over an out-of-state defendant who has not

consented to suit there, this ‘fair warning’ requirement is

satisfied if the defendant has ‘purposefully directed’ his

activities at residents of the forum,” id. (quoting Keeton v.

Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)), “and the

litigation results from alleged injuries that ‘arise out of or relate

to’ those activities,” id. (quoting Helicopteros Nacionales de

Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)).

In reaching the conclusion that it lacked personal

jurisdiction over bin Laden and al Qaeda, the district court

of national contacts personal jurisdiction . . . under F.R. Civ. P. 4,”

and citing the section of a treatise discussing paragraph (k)(2).

Appellants Br. at 21 (citing 4 WRIGHT & MILLER § 1068.1); Pls.’ Mot.

for Recons. at 3 & n.4 (Oct. 11, 2002) (same).

17

focused on a list of specific, physical contacts that the plaintiffs

alleged the defendants had made with the District of Columbia

and its environs. Those contacts included: the publication of

fatwas in a newspaper distributed in the United States; the

shipment to Virginia of the power supply for a cell phone that

bin Laden used in Afghanistan; the scheduling of a bin Laden

interview in Afghanistan through an agent in Washington, D.C.;

and the transmission of bin Laden’s views to the District via

interviews on CNN and ABC. See September 2002 Opinion at

28-29. Much of this evidence came from the indictment and

closing argument in United States v. Bin Ladin, No. 98-CR-1023

(S.D.N.Y.), as well as from government speeches, press

releases, and other reports. “All of Plaintiffs’ submissions to the

Court have various evidentiary problems,” the district court said.

September 2002 Opinion at 14; see id. at 13-14 (concluding that

several submissions constituted “inadmissible hearsay”). And

those problems aside, the court thought the evidence did not

demonstrate “that [bin Laden] and al Qaeda ‘purposefully

directed’ [their] activities at the United States” and “that this

litigation results from alleged injuries that arise out of or relate

to those activities.” Id. (quoting Burger King, 471 U.S. at

472).11

As we noted in Part II.A, the district court’s emphasis on

satisfying strict evidentiary standards at this stage of the

litigation was incorrect. While understandable given the

absence of Circuit precedent regarding Rule 4(k)(2), so, too, was

its exclusive focus on contacts with the District of Columbia,

11

The district court rejected the plaintiffs’ subsequent offers of

additional evidence in motions for reconsideration, in part because the

proffered evidence, even if newly discovered, “would not change the

Court’s . . . ruling on personal jurisdiction.” Mwani v. United States,

No. 99-125, Mem. Op. at 4 (D.D.C. Sept. 30, 2003) (denying motion

for reconsideration).

18

rather than with the nation as a whole. See supra Part II.B.1.

But the fundamental problem with the court’s analysis was its

focus on specific, physical contacts between the defendants and

the forum. Although “the constitutional touchstone remains

whether the defendant purposefully established ‘minimum

contacts’ in the forum,” Burger King, 471 at 474 (quoting

International Shoe, 326 U.S. at 316), the “foreseeability” of

causing injury in the forum can establish such contacts where

“the defendant’s conduct and connection with the forum . . . are

such that he should reasonably anticipate being haled into court

there.” Id. (quoting World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286, 295 (1980)). “Jurisdiction in these circumstances

may not be avoided merely because the defendant did not

physically enter the forum.” Id. at 477. Rather, “[s]o long as

[an] actor’s efforts are ‘purposefully directed’ toward residents

of another [forum],” the Supreme Court has “consistently

rejected the notion that an absence of physical contacts can

defeat personal jurisdiction there.” Id. at 476 (quoting Keeton,

465 U.S. at 774); see GTE, 199 F.3d at 1349 (noting that

“jurisdiction may attach if the defendant’s conduct is aimed at

or has an effect in the forum state” (quoting Panavision

International, LP v. Toeppen, 141 F.3d 1316, 1321 (9th Cir.

1998))).

In this case, there is no doubt that the defendants “engaged

in unabashedly malignant actions directed at [and] felt in this

forum.” Id. The plaintiffs’ allegations and evidence were that

bin Laden and al Qaeda orchestrated the bombing of the

American embassy in Nairobi, not only to kill both American

and Kenyan employees inside the building, but to cause pain and

sow terror in the embassy’s home country, the United States.

Nor were the plaintiffs’ allegations and evidence of contacts

with the United States limited to the Nairobi bombing. The

plaintiffs described an ongoing conspiracy to attack the United

States, with overt acts occurring within this country’s borders.

19

Putting to one side the acts that took place after the embassy

bombing (including the attacks on the World Trade Center and

the Pentagon on September 11, 2001), the plaintiffs pointed to

the 1993 World Trade Center bombing, as well as to the plot to

bomb the United Nations, Federal Plaza, and the Lincoln and

Holland Tunnels in New York.12

The plaintiffs thus amply made a prima facie showing that

bin Laden and al Qaeda “‘purposefully directed’ [their] activities

at residents” of the United States, Burger King, 471 U.S. at 472

(quoting Keeton, 465 U.S. at 774), and that this litigation results

from injuries to the plaintiffs “that ‘arise out of or relate to’

those activities,” id. (quoting Helicopteros Nacionales, 466 U.S.

12

In addition to the allegations of their complaint and pleadings,

the plaintiffs supported their contentions with, inter alia: a February

1998 fatwa issued by bin Laden and al Qaeda, calling upon Muslims

to kill Americans, military and civilian, “in any country in which it is

possible to do it,” Pls.’ Renewed Mot. for Entry of Default at 5; a

similar August 1996 fatwa, see id. at 3; two television interviews,

broadcast in the U.S. in 1997 and 1998, in which bin Laden exhorted

his followers to “take the fighting to America,” Third Supplemental

Filing in Supp. of Pls.’ Mot. for Entry of a Default at 2 (Oct. 10,

2001); the indictment and argument in a criminal case brought by the

United States regarding the Nairobi attack and the simultaneous

bombing of the American embassy in Tanzania, see United States v.

bin Laden, 98-CR-1023 (S.D.N.Y); President Bush’s address to

Congress, attributing the September 11, 2001 attacks and the embassy

bombings to the same group, see Second Supplemental Filing in Supp.

of Pls.’ Mot. for Entry of Default at Pls.’ Ex. 4 (Sept. 27, 2001); and

a British government report to the same effect, Third Supplemental

Filing at 2. The 9/11 Commission Report, cited by the plaintiffs before

this court, but issued after the district court’s decisions in this case,

provides substantial further support for the plaintiffs’ allegations. See

THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL

COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES at

47-71 (2004).

20

at 414). Bin Laden and al Qaeda therefore had “fair warning”

that their activities would “subject [them] to the jurisdiction” of

the United States. Id. (quoting Shaffer, 433 U.S. at 218).

The fact that injured Kenyans, not injured Americans, are

the plaintiffs in this case does not deny the court personal

jurisdiction over the defendants. See Calder v. Jones, 465 U.S.

783, 788 (1984) (“The plaintiff’s lack of ‘contacts’ [with the

forum] will not defeat otherwise proper jurisdiction.”); Keeton,

465 U.S. at 780 (“[The] plaintiff’s residence in the forum State

is not a separate requirement, and lack of residence will not

defeat jurisdiction established on the basis of the defendant’s

contacts.”).13 The defendants’ decision to purposefully direct

their terror at the United States, and the fact that the plaintiffs’

injuries arose out of one of those terrorist activities, should

suffice to cause the defendants to “reasonably anticipate being

haled into” an American court. Burger King, 471 U.S. at 474

(quoting World-Wide Volkswagen, 444 U.S. at 297). Of course,

a plaintiff’s citizenship may affect whether the court has subject

matter jurisdiction or the plaintiff has a cause of action. Here,

however, the plaintiffs have sued under the Alien Tort Claims

Act, which the Supreme Court has held to supply both subject

matter jurisdiction and a cause of action for a narrow set of

claims brought by aliens and involving violation of the law of

nations. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2754,

2761-62 (2004). The Mwani plaintiffs certainly have more than

a colorable argument that their claims fall within that narrow

13

Cf. Keeton, 465 U.S. at 776 (holding that a state had a

significant interest in redressing a libel action brought by nonresident

plaintiffs because, inter alia, “[f]alse statements of fact harm both the

subject of the falsehood and the readers of the statement,” and a state

“may rightly employ its libel laws to discourage the deception of its

citizens”).

21

set.14

It is true that even after “it has been decided that a

defendant purposefully established minimum contacts within the

forum . . . , these contacts may be considered in light of other

factors to determine whether the assertion of personal

jurisdiction would comport with ‘fair play and substantial

justice.’” Burger King, 471 U.S. at 476 (quoting International

Shoe, 326 U.S. at 320). But “where a defendant who

purposefully has directed his activities at forum residents seeks

to defeat jurisdiction, he must present a compelling case that the

presence of some other considerations would render jurisdiction

unreasonable.” Id. at 477. Here, the defendants purposefully

directed their activities at forum residents, and the fact that the

plaintiffs are Kenyans who were injured in the process is not a

consideration that would render the assertion of American

jurisdiction incompatible with substantial justice.

In sum, we conclude that there is “authorization for service

of summons on the defendant[s]” and a “constitutionally

sufficient relationship between the defendant[s] and the forum.”

Omni Capital, 484 U.S. at 104. As a consequence, the district

14

In Sosa, the Court determined that the First Congress

understood the ATCA to “recognize private causes of action for

certain torts in violation of the law of nations,” including “violation of

safe conducts, infringement of the rights of ambassadors, and piracy.”

124 S. Ct. at 2761. It concluded that “courts should require any claim

based on the present-day law of nations to rest on a norm of

international character accepted by the civilized world and defined

with a specificity comparable to the features of [those] 18th-century

paradigms.” Id. at 2761-62. The plaintiffs’ contention that bin Laden

and al Qaeda attacked the American embassy intending, among other

things, to kill American diplomatic personnel inside, would appear to

fall well within those paradigms. See id. at 2756 (noting that the 18th-

century paradigm included “assault against an ambassador”).

22

court “may exercise personal jurisdiction over” them. Id.

III

We now turn to the plaintiffs’ appeal from the dismissal of

their claims against the remaining defendant, Afghanistan. The

Foreign Sovereign Immunities Act “provides the sole basis for

obtaining jurisdiction over a foreign state in the courts of this

country.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993)

(internal quotation marks omitted). Under the FSIA, a foreign

state is immune from the jurisdiction of American courts unless

the case falls within a statutory exception. 28 U.S.C. § 1604;

see id. §§ 1605-1607. If no exception applies, the district court

lacks subject matter jurisdiction. Id. § 1604. If an exception

does apply, the district court has jurisdiction. Id. § 1330(a); see

Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d

1123, 1126 (D.C. Cir. 2004); World Wide Minerals, Ltd. v.

Republic of Kazakhstan, 296 F.3d 1154, 1161 (D.C. Cir. 2002).

In the district court, the plaintiffs relied on two statutory

exceptions -- for implicit waiver, 28 U.S.C. § 1605(a)(1), and

for commercial activity, 28 U.S.C. § 1605(a)(2).15 The plaintiffs

15

The plaintiffs concede that another exception, 28 U.S.C. §

1605(a)(7), is inapplicable to this case. That provision “vitiates

immunity in cases ‘in which money damages are sought against a

foreign state for personal injury or death that was caused’” by

specified acts of terrorism “‘or the provision of material support or

resources . . . for such an act if such act or provision of material

support is engaged in by an official, employee, or agent of such

foreign state while acting within the scope of his or her office,

employment, or agency.’” Price v. Socialist People's Libyan Arab

Jamahiriya, 294 F.3d 82, 88 (D.C. Cir. 2002) (quoting 28 U.S.C. §

1605(a)(7)); see Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d

1024, 1032 (D.C. Cir. 2004). The provision does not apply, however,

unless the defendant foreign state “has been specifically designated by

23

have abandoned the former on appeal and now rely solely on the

latter, the third clause of which provides:

A foreign state shall not be immune from the

jurisdiction of courts of the United States . . . in any

case . . . in which the action is based . . . upon an act

outside the territory of the United States in connection

with a commercial activity of the foreign state

elsewhere and that act causes a direct effect in the

United States.

28 U.S.C. § 1605(a)(2). The FSIA defines “commercial

activity” as “either a regular course of commercial conduct or a

particular commercial transaction or act,” and states that “the

commercial character of an activity shall be determined by

reference to the nature of the course of conduct or particular

transaction or act, rather than by reference to its purpose.” Id.

§ 1603(d).

It is the defendant’s burden to prove that a plaintiff’s

allegations do not fall within the bounds of an FSIA exception.

See Kilburn, 376 F.3d at 1131. “‘If the defendant challenges

only the legal sufficiency of the plaintiff’s jurisdictional

allegations, then the district court should take the plaintiff’s

factual allegations as true and determine whether they bring the

case within any of the exceptions to immunity invoked by the

plaintiff.’” Id. at 1127 (quoting Phoenix Consulting, Inc. v.

the State Department as a ‘state sponsor of terrorism.’” Price, 294

F.3d at 89 (quoting 28 U.S.C. § 1605(a)(7)(A)). The plaintiffs

acknowledge that the United States has never so designated

Afghanistan, thus rendering § 1605(a)(7) inapplicable here and

depriving the district court of jurisdiction even to consider a claim

against Afghanistan absent some other exception to sovereign

immunity.

24

Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)).

Although Afghanistan does not expressly concede the truth of

the plaintiffs’ factual allegations, it argues that even if taken as

true, the allegations are insufficient to come within the

commercial activity exception. This amounts to a challenge to

the legal sufficiency of the allegations, and we must thus

“decide de novo whether [the alleged jurisdictional] facts are

sufficient to divest the foreign sovereign of its immunity.” Price

v. Socialist People’s Libyan Arab Jamahiriya, 389 F.3d 192, 197

(D.C. Cir. 2004).

The gravamen of the plaintiffs’ claim to the commercial

activity exception is well-described in their appellate brief:

Afghanistan had served as a place of refuge for

international terrorists since the 1980’s. The Taliban

actively aided Bin Ladin by assigning him guards for

security, permitting him to build and maintain terrorist

camps, and refusing to cooperate with efforts by the

international community to extradite him. Bin Laden

provided approximately $10-$20 million per year to

the Taliban in return for safe haven.

Appellants Br. at 27 (citations and internal quotation marks

omitted). But the plaintiffs’ contention that “[t]his conduct

constitutes commercial activity as defined by the FSIA and the

case law interpreting it,” id. at 34, cannot stand in the face of the

Supreme Court’s precedents, or those of this court.

In Nelson, the Supreme Court observed that the FSIA

largely codifies the “restrictive” theory of foreign sovereign

immunity, and that under that theory a state engages in

commercial activity

where it exercises “only those powers that can also be

25

exercised by private citizens,” as distinct from those

“powers peculiar to sovereigns.” Put differently, a

foreign state engages in commercial activity for

purposes of the restrictive theory only where it acts “in

the manner of a private player within” the market.

507 U.S. at 360 (quoting Republic of Argentina v. Weltover,

Inc., 504 U.S. 607, 614 (1992)). Moreover, the Court

emphasized that “whether a state acts ‘in the manner of’ a

private party is a question of behavior and not motivation.” Id.

(quoting Weltover, 504 U.S. at 614). As the Court elaborated:

[B]ecause the Act provides that the commercial

character of an act is to be determined by reference to

its “nature” rather than its “purpose,” the question is

not whether the foreign government is acting with a

profit motive or instead with the aim of fulfilling

uniquely sovereign objectives. Rather, the issue is

whether the particular actions that the foreign state

performs (whatever the motive behind them) are the

type of actions by which a private party engages in

“trade and traffic or commerce.”

Id. at 360-61 (quoting Weltover, 504 U.S. at 614) (citations

omitted). In accordance with this standard, the Nelson Court

rejected an argument that Saudi Arabia’s wrongful arrest,

imprisonment, and torture of the plaintiff, assertedly used by the

government to resolve a commercial dispute with the plaintiff,

could qualify a claim for the commercial activity exception. As

it explained:

Exercise of the powers of police and penal officers is

not the sort of action by which private parties can

engage in commerce. Such acts as legislation, or the

expulsion of an alien, or a denial of justice, cannot be

26

performed by an individual acting in his own name.

They can be performed only by the state acting as such.

Id. at 362 (internal quotation marks and alterations omitted).

This court has reached a similar conclusion in a different

setting. In Cicippio v. Islamic Republic of Iran, we held that

hostage-taking for profit did not fall within the commercial

activity exception. See 30 F.3d 164, 168 (D.C. Cir. 1994). This

was so, we said, because the act giving rise to jurisdiction must

itself take place in a commercial context. And kidnapping, we

concluded,

cannot possibly be described as an act typically

performed by participants in the market (unless one

distorts the notion of a marketplace to include a

hostage bazaar). That money was allegedly sought

from relatives of the hostages could not make an

ordinary kidnapping a commercial act any more than

murder by itself would be treated as a commercial

activity merely because the killer is paid.

Id.

Nelson and Cicippio foreclose the plaintiffs’ argument that

the transactions between the Taliban, Afghanistan’s former

rulers, and al Qaeda, a terrorist organization, qualify as

commercial activity. The plaintiffs attempt to characterize

Afghanistan’s harboring of terrorist camps as the

“paradigmatically mercantile” provision of land for money,

Appellants Reply Br. at 4, but such reductive logic would

transform the retaliatory torture in Nelson into “commercial

dispute resolution,” and the kidnapping in Cicippio into an

“exchange of goods for cash.” The key inquiry in determining

whether particular conduct constitutes commercial activity is not

27

to ask whether its purpose is to obtain money, but rather whether

it is “the sort of action by which private parties can engage in

commerce.” Nelson, 507 U.S. at 362. Granting refuge to

terrorist training camps is a uniquely sovereign act; it is not the

sort of benefit that a commercial landlord can bestow upon a

commercial tenant. As the plaintiffs themselves describe, refuge

involved both the “assigning [of] guards for security” and the

“refus[al] to . . . extradite” bin Laden. Appellants Br. at 27. But

the Court made clear in Nelson that this “[e]xercise of the

powers of police” and of authority over “the expulsion of an

alien” cannot “be performed by an individual acting in his own

name. They can be performed only by the state acting as such.”

507 U.S. at 362 (internal quotation marks omitted).

Finally, we also reject the plaintiffs’ contention that the

district court abused its discretion by denying them

jurisdictional discovery against Afghanistan. Although the

plaintiffs are correct that the “Federal Rules of Civil Procedure

generally provide for liberal discovery to establish jurisdictional

facts,” Goodman Holdings, 26 F.3d at 1147, “[n]evertheless, the

scope of discovery lies within the district court’s discretion.” Id.

And when we “do not see what facts additional discovery could

produce that would affect our jurisdictional analysis,” we must

“conclude the district court did not abuse its discretion in

dismissing the action when it did.” Id. That is the situation

here, because even assuming that the Taliban engaged in all of

the conduct alleged in the complaint, the commercial activity

exception would not apply.

IV

We affirm the district court’s dismissal of the plaintiffs’

claims against Afghanistan for lack of subject matter jurisdiction

under the Foreign Sovereign Immunities Act. We reverse the

dismissal of their claims against bin Laden and al Qaeda,

28

however, because the plaintiffs have satisfied their burden of

showing that the district court can properly exercise personal

jurisdiction over those defendants.

So ordered.