Reuven Gilmore v. Palestinian Interim Self-Government Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2016 Decided December 13, 2016

No. 14-7129

REUVEN GILMORE, INDIVIDUALLY, AS THE ADMINISTRATOR OF

THE ESTATE OF ESH KODESH GILMORE AND AS NATURAL

GUARDIAN OF PLAINTIFFS ELIANA GILMORE AND DROR

GILMORE, ET AL.,

APPELLANTS

v.

PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY, ALSO

KNOWN AS PALESTINIAN NATIONAL AUTHORITY, ALSO KNOWN

AS PALESTINIAN AUTHORITY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:01-cv-00853)

Kent A. Yalowitz argued the cause for appellants. With

him on the briefs were Robert J. Tolchin and Meir Katz.

Mitchell R. Berger argued the cause for appellees The

Palestinian Authority and Palestine Liberation Organization.

With him on the brief were Pierre H. Bergeron, John A.

Burlingame, Alexandra E. Chopin, and Gassan A. Baloul.

2

Before: GRIFFITH and WILKINS, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: Esh Kodesh Gilmore

(“Gilmore”), a United States national, was killed in a shooting

attack in Jerusalem on October 30, 2000. His family

members and estate (collectively, “Appellants”) filed suit

against the Palestinian Interim Self-Government Authority

(“PA”) and the Palestine Liberation Organization (“PLO”)

(collectively, “Appellees”) asserting claims under the Anti-

Terrorism Act, 18 U.S.C. § 2333, and related common law

theories.

After years of litigation, the District Court granted

summary judgment in favor of Appellees. Appellants

challenge the judgment, along with the vacatur of Appellees’

defaults and the denial of Appellants’ motion to compel the

production of intelligence materials. Appellees challenge the

District Court’s denial of a motion for judgment on the

pleadings for lack of personal jurisdiction. We have

jurisdiction to review the final decisions of the District Court

under 28 U.S.C. § 1291. For the reasons set forth below, we

affirm each of the District Court’s challenged orders.

I.

Gilmore was a private security guard at an East Jerusalem

branch office of the National Insurance Institute of Israel. On

October 30, 2000, he was shot and killed while on duty. The

State of Israel has not prosecuted or convicted anyone in

connection with the shooting.

Appellants filed suit against Appellees and individual

defendants on April 18, 2001. Appellees “failed to plead or

3

otherwise defend th[e] action,” so default was entered against

them on December 20, 2001. J.A. 85. A month and a half

later, Appellees moved to vacate the default. Appellees and

individual defendants also moved to dismiss, arguing (1) the

suit was a politically-motivated attack on the PA and

therefore non-justiciable, (2) “Palestine [was] a state under

U.S. and international law” and therefore Appellees were

entitled to sovereign immunity, and (3) “[p]ersonal

[j]urisdiction [was] [l]acking [o]ver the [i]ndividual

[d]efendants.” J.A. 85.9-85.31. The District Court vacated

the default “in light of the strong preference in this

jurisdiction for rulings on the merits.” J.A. 86. For a variety

of reasons, however, the District Court did not rule on the

motion to dismiss until March 7, 2006, when it granted the

motion as to the individual defendants but denied the motion

as to Appellees.

After the ruling, Appellees failed to file a timely answer.

The District Court again entered default against Appellees on

January 29, 2007. Over the summer of 2007, the District

Court held damages hearings at which Gilmore’s family

testified. On November 15, 2007, Appellees moved to vacate

the second default and filed an answer. In a declaration

submitted with the motion, the PA’s Prime Minister, Salam

Fayyad, explained that he “became aware” of a letter from

U.S. Secretary of State Condoleezza Rice, which encouraged

Appellees to “respond to U.S. legal proceedings in a good

faith and a timely manner.” Decl. of Salam Fayyad ¶ 11, J.A.

130. Prime Minister Fayyad assured the District Court that he

“instructed new counsel that [Appellees] will participate fully

in this and other litigation, in a cooperative manner, including

complete participation in the discovery process.” Id. ¶ 13,

J.A. 130. On December 28, 2009, the District Court vacated

the second default and, to mitigate prejudice to Appellants,

ordered Appellees to: (1) reimburse Appellants for attorneys’

4

fees and costs incurred as a result of the default, (2) stipulate

that Appellants “need not testify again and that their

testimony from the damages hearing may be read into the trial

record,” and (3) post a $1 million bond. J.A. 155-174.

Following years of discovery, Appellees submitted a

privilege log to Appellants on March 4, 2013. The log

disclosed twenty-five pages of material generated by the PA’s

intelligence agency, the General Intelligence Services

(“GIS”), which were withheld under the state-secrets and law-

enforcement privileges. Appellants moved to compel the

production of those materials, arguing principally that

Appellees should produce the GIS materials, and alternatively

that the District Court should “conduct an in camera review

of the documents to determine whether any privileges apply.”

J.A. 240-258. At a status conference, Appellees argued that

ex parte briefing would need to accompany in camera review

because it would be “very difficult for [the District Court] to

review the documents and reach an assessment of them

without additional information that should not be disclosed

publically or to [Appellants].” Mot. Hr’g Tr. 14:19-24, J.A.

296. The District Court subsequently ordered Appellees to

file, sealed and ex parte, the GIS materials and “an

explanatory Memorandum of those documents, not to exceed

10 pages.” J.A. 282. On June 6, 2013, following in camera

review aided by Appellees’ ex parte briefing, the District

Court denied Appellants’ motion to compel the production of

the twenty-five pages of GIS materials. The District Court

also denied Appellants’ motion to unseal the memorandum

submitted ex parte by Appellees.

Appellees subsequently moved for summary judgment,

arguing that at the close of fact discovery, Appellants had no

admissible evidence linking Gilmore’s murder to any

particular person, let alone Appellees. Appellants argued that

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Gilmore was killed by Muhanad Abu Halawa (“Halawa”), a

deceased former soldier in the PA’s security apparatus known

as “Force 17,” and that Appellees were vicariously liable for

Halawa’s actions. In support of that theory, Appellants

proffered the following evidence:

 Two statements published online by the Israel

Ministry of Foreign Affairs;

 A passage from a non-fiction book entitled The

Seventh War, which recounted a prison interview that

implicated Halawa;

 A statement by one of Halawa’s associates, which was

written and signed while in the custody of Israeli

police;

 The testimony of Halawa’s colleague during the trial

of Halawa’s supervisor; and

 An expert report authored by a former intelligence

officer of the Israel Defense Forces.

The District Court declared this evidence inadmissible,

and granted Appellees’ motion for summary judgment.

II.

Appellees urge this Court to “affirm the judgment below

on the alternative ground that the court below lacked personal

jurisdiction over [them].” Appellees’ Br. at 52. We address

this argument first. See Sinochem Int’l Co. v. Malay. Int’l

Shipping Corp., 549 U.S. 422, 430-31 (2007) (citing Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 93-102 (1998))

(“[A] federal court generally may not rule on the merits of a

case without first determining that it has jurisdiction over the

category of claim in suit (subject-matter jurisdiction) and the

parties (personal jurisdiction).”). We conclude that Appellees

have waived their challenges to personal jurisdiction.

6

“It is . . . elementary that a defense of . . . lack of personal

(as opposed to subject matter) jurisdiction is waived unless

the defense is asserted by a pre-answer motion (i.e., Rule

12(b)) or in a responsive pleading, i.e., the answer or a timely

amendment thereto.” Chatman-Bey v. Thornburgh, 864 F.2d

804, 813 (D.C. Cir. 1988) (en banc) (citing FED. R. CIV. P.

12(h)(1), and 5C CHARLES A. WRIGHT, ARTHUR R. MILLER &

EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE

§ 1388 (2d ed. 1969)).

In their pre-answer motion, Appellees argued that

“Palestine [was] a state under U.S. and international law” and,

therefore, they were entitled to sovereign immunity under the

Foreign Sovereign Immunities Act (“FSIA”). J.A. 85.24.

Appellees now raise a constitutional personal-jurisdiction

defense, which they argue was preserved by their invocation

of the FSIA. At oral argument, Appellees insisted that “a

sovereign immunity challenge is a challenge to both personal

jurisdiction and subject matter jurisdiction,” and a “substantial

jurisdictional challenge” should not be deemed waived just

“because the motion said ‘sovereign immunity’ and did not

articulate the words ‘personal jurisdiction.’” Oral Arg. at

22:50-23:45.

This argument is foreclosed by Foremost-McKesson, Inc.

v. Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir. 1990). In

Foremost-McKesson, Iran went a step further than Appellees:

it expressly argued that “[b]ecause under the FSIA personal

jurisdiction cannot exist unless there is subject-matter

jurisdiction, . . . the Court also lacks personal jurisdiction,” id.

at 453; in other words, Iran did “articulate the words ‘personal

jurisdiction.’” This Court, however, rejected Iran’s argument

because statutory and constitutional grounds for personal

jurisdiction are different – a court must have both to hear a

case. Accordingly, we held that a “defense resting on

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personal jurisdiction involv[ing] a statutory claim” does not

preserve “the separate constitutional ground for a claim of

lack of in personam jurisdiction.” Id. This reasoning applies

with equal force here: in their 2002 motion to dismiss,

Appellees’ “only defense resting on personal jurisdiction

involved” the FSIA and, therefore, they have waived “the

separate constitutional ground for a claim of lack of in

personam jurisdiction.” Id.

Appellees also argue that their personal-jurisdiction

defense was not “available” to them until the Supreme

Court’s decision in Daimler AG v. Bauman, 134 S. Ct. 746

(2014). “[A] party is only required to consolidate Rule 12

defenses and objections that are ‘then available to the party.’”

5C CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 1388 (3d ed. 2014) (quoting

FED. R. CIV. P. 12(g)). A defense is “available” unless “its

legal basis did not exist at the time of the answer or pre-

answer motion, or the complaint does not contain facts

sufficient to indicate that a defense was possible.” Chatman-

Bey, 864 F.2d at 813 n.9 (citations omitted). At the time of

Appellees’ pre-answer motion in 2002, the “legal basis” for

their personal-jurisdiction defense did exist; there was no

Supreme Court or in-circuit precedent rendering the personal-

jurisdiction defense “for all practical purposes impossible for

the defendants to interpose.” Id. In other words, the defense

was “available” at the time.

An examination of the Second Circuit’s recent decision

in Waldman v. Palestine Liberation Organization, 835 F.3d

317 (2d Cir. 2016) illustrates the point. Second Circuit

precedent “permitted general jurisdiction on the basis that a

foreign corporation was doing business through a location

branch office in the forum.” Gucci Am., Inc. v. Weixing Li,

768 F.3d 122, 135 (2d Cir. 2014) (citations omitted). The PA

8

and PLO were arguably “doing business through a location

branch office.” See Klinghoffer v. S.N.C. Achille Lauro Ed

Altri-Gestione Motonave Achille Lauro in Amministrazione

Straordinaria, 937 F.2d 44, 51-52 (2d Cir. 1991) (noting that

the PLO owned a building in Manhattan that it used as an

office). Consequently, in the Second Circuit, the “legal basis”

for the PA and PLO’s personal-jurisdiction defense arguably

“did not exist at the time” while this precedent was

controlling. See Chatman-Bey, 864 F.2d at 813 n.9. In

Daimler, the Supreme Court “expressly cast doubt on” that

Second Circuit precedent. Gucci, 768 F.3d at 135.

Accordingly, the Second Circuit held that the PA and PLO

“did not waive or forfeit their objection to personal

jurisdiction” because the objection was not “available” before

Daimler. Waldman, 835 F.3d at 328.

No similar precedent existed in this Circuit and,

therefore, the “legal basis” for Appellees’ personal-

jurisdiction defense did exist at the time; the defense was

“available.” See Chatman-Bey, 864 F.2d at 813 n.9.

Therefore, Appellees waived their personal-jurisdiction

defense by failing to assert it in their pre-answer motion.

III.

We next turn to the District Court’s vacatur of two

defaults, which we review “for abuse of discretion, keeping in

mind the federal policy favoring trial over default judgment.”

Whelan v. Abell, 48 F.3d 1247, 1258 (D.C. Cir. 1995).

Appellants argue that Appellees were “essentially

unresponsive” prior to the entry of two defaults, and that

“should have been the end of the [District Court’s] inquiry.”

Appellants’ Br. at 31-32. The Federal Rules of Civil

Procedure delineate the standards governing the entry and

vacatur of defaults and default judgments. See FED. R. CIV. P.

9

55(a) (entering defaults), 55(b) (entering default judgments),

55(c) (vacating defaults), 60(b) (vacating default judgments).

In H.F. Livermore Corp. v. Aktiengesellschaft Gebruder

Loepfe, 432 F.2d 689 (D.C. Cir. 1970), this Court articulated

the policy reasons for allowing default judgments: “when the

adversary process has been halted because of an essentially

unresponsive party . . . ., the diligent party must be protected

lest he be faced with interminable delay and continued

uncertainty as to his rights.” Id. at 691; see 10A CHARLES A.

WRIGHT, ARTHUR R. MILLER & MARY K. KANE, FEDERAL

PRACTICE AND PROCEDURE § 2681 (3d ed. 2016) (discussing

H.F. Livermore as an “apt expression” of the “policy reasons

for allowing default judgments”). However, the rationale for

entering default judgments does not govern the analysis for

vacating defaults; this Court has never held that when a

defendant has been “essentially unresponsive,” courts are

forbidden from vacating defaults.1

Rather, district courts may vacate “an entry of default for

good cause.” FED. R. CIV. P. 55(c). The “good cause”

standard “frees a court . . . from the restraints of Rule 60(b)

[conditions for vacating default judgments] and entrusts the

determination to the discretion of the court.” 10A CHARLES

A. WRIGHT, ARTHUR R. MILLER & MARY K. KANE FEDERAL

PRACTICE AND PROCEDURE § 2694 (3d ed. 2016). “[E]xercise

of that discretion entails consideration of whether (1) the

default was willful, (2) a set-aside would prejudice plaintiff,

and (3) the alleged defense was meritorious . . . .” Keegel v.

Key W. & Caribbean Trading, 627 F.2d 372, 373 (D.C. Cir.

1980) (citations omitted).

1

Indeed, even default judgments may be vacated when the

defaulting party was, for some period of time, “essentially

unresponsive.” See FED. R. CIV. P. 60(b) (listing several conditions

unrelated to responsiveness or willfulness).

10

Following the Keegel framework, the District Court first

found that Appellees’ defaults were willful. Second, it found

that vacatur would cause prejudice to Appellants, but

mitigated the prejudice by requiring Appellees to: (a)

reimburse Appellants for attorneys’ fees and costs incurred as

a result of the default, (b) stipulate that Appellants “need not

testify again and that their testimony from the damages

hearing may be read into the trial record,” and (c) post a

$1 million bond. J.A. 155-174. Third, the District Court

found that Appellees raised “meritorious” defenses. For the

purposes of vacating defaults, “[d]efendants’ allegations are

meritorious if they contain even a hint of a suggestion which,

proven at trial, would constitute a complete defense.” Keegel,

627 F.2d at 375 (internal quotation marks and citations

omitted). Appellees satisfied this modest requirement. Even

when a default is willful, a district court does not necessarily

abuse its discretion by vacating a default when the asserted

defense is meritorious and the district court took steps to

mitigate any prejudice to the non-defaulting party. See, e.g.,

Whelan, 48 F.3d at 1258-59 (affirming the vacatur of a default

as to most claims, despite “the record suggest[ing] intentional

delay”).

Appellants argue that the District Court abused its

discretion by considering factors other than those articulated

in Keegel. Rule 55(c)’s “good cause” determination is a

balance of the equities, Whelan, 48 F.3d at 1259-60, that is

guided principally – but not exclusively – by the Keegel

factors. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96

(2d Cir. 1993) (observing that in addition to the Keegel

factors, “[o]ther relevant equitable factors may also be

considered”). The “good cause” standard is designed to

empower courts to consider the equities that specially arise in

a given case. See 10A CHARLES A. WRIGHT, ARTHUR R.

MILLER & MARY K. KANE FEDERAL PRACTICE AND

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PROCEDURE § 2696 (3d ed. 2016) (“Rule 55(c) is addressed to

the trial court’s discretion, which is exercised in light of all

the circumstances of the individual situation . . . .”).

Accordingly, the District Court properly credited the equitable

considerations raised by the foreign defendants in this case,

and did not abuse its discretion merely because those

considerations fell outside the Keegel framework. The

District Court ultimately determined that upon consideration

of all the factors – those articulated in Keegel and not – this

matter was best resolved on the merits, which is hardly a

remarkable conclusion. See Keegel, 627 F.2d at 375

(“[C]ourts . . . universally favor trials on the merits.” (internal

quotation marks and citations omitted)).

In light of the “federal policy favoring trial over default

judgment,” Whelan, 48 F.3d at 1258, we conclude the District

Court did not abuse its discretion in finding “good cause” to

vacate Appellees’ defaults.

IV.

We turn to consider the District Court’s denial of

Appellants’ motion to compel the production of purportedly

privileged materials, based on in camera review with the

assistance of ex parte briefing.

Following years of discovery, Appellees submitted an

untimely privilege log to Appellants. The log disclosed the

existence of twenty-five pages of materials generated by the

PA’s intelligence agency, but withheld those materials as

privileged. At Appellants’ suggestion, the District Court

reviewed the intelligence materials in camera. In response,

Appellees explained to the District Court that it would be

“very difficult . . . to review the [intelligence materials] and

reach an assessment of them without additional information

that should not be disclosed publically or to [Appellants].”

12

Mot. Hr’g Tr. 14:19-24, J.A. 296. Consequently, the District

Court ordered Appellees to submit ex parte “an explanatory

Memorandum of those documents, not to exceed 10 pages.”

After reviewing the twenty-five pages of intelligence

materials in camera with the assistance of the ex parte

memorandum, the District Court concluded that the

documents offered no relevant information that was not

already in Appellants’ possession.

A.

Appellants argue that by deciding the motion based on in

camera review with the assistance of the ten-page ex parte

memorandum, the District Court violated Appellants’ Fifth

Amendment due process rights.

The Supreme Court “has approved the practice of

requiring parties who seek to avoid disclosures of documents

to make the documents available for in camera inspection,

and the practice is well established in the federal courts.”

United States v. Zolin, 491 U.S. 554, 569 (1989) (citations

omitted).

However, ex parte proceedings should be employed to

resolve discovery disputes only in extraordinary

circumstances. Cf. Abourezk v. Reagan, 785 F.2d 1043, 1061

(D.C. Cir. 1986) (Ginsburg, R.B., J.) (“Only in the most

extraordinary circumstances does our precedent countenance

court reliance upon ex parte evidence to decide the merits of a

dispute.”). “The openness of judicial proceedings serves to

preserve both the appearance and the reality of fairness in the

adjudications of United States courts.” Id. at 1060-61.

Nevertheless, “communications between a judge and one

party are not per se deprivations of the due process rights of

the opposing party . . . .” Clifford v. United States, 136 F.3d

144, 149 (D.C. Cir. 1998) (citation omitted).

13

In Clifford, this Court catalogued some of the

circumstances in which ex parte submissions have been

permitted:

Ex parte submissions are permissible to

determine whether documents sought by a

party enjoy a privilege against discovery, see In

re Application of Eisenberg, 654 F.2d 1107,

1112 (5th Cir. Unit B 1981); cf. Kerr v. United

States Dist. Court, 426 U.S. 394, 405 (1976),

‘to prevent frustration of a statutory purpose to

limit access to Government papers,’ In re

Taylor, 567 F.2d 1183, 1188 (2d Cir. 1977), or

‘to resolve fears of intimidation of a witness,’

In re Paradyne Corp., 803 F.2d [604][,] 612

[(11th Cir. 1986)].

136 F.3d at 149; see also Abourezk, 785 F.2d at 1060-61

(listing similar exceptions).

These “extraordinary circumstances” share a common

feature: the need for secrecy in light of the substantial adverse

consequences of disclosure. Here, Appellants sought

intelligence materials generated in the midst of a geopolitical

conflict. The District Court was tasked with evaluating the

discoverability of those materials, which would have been

challenging without proper context. In light of the sensitive

nature of the disputed materials and the foreign policy

implications of disclosure, this case presents one of the

“extraordinary circumstances” in which it was not improper

for the District Court to consider a ten-page ex parte

explanatory memorandum. See Abourezk, 785 F.2d at 1060-

61.

14

B.

Appellants also challenge the substance of the District

Court’s decision to deny their motion to compel. “We review

district court rulings on discovery matters solely for abuse of

discretion, reversing only if the party challenging the decision

can show it was clearly unreasonable, arbitrary, or fanciful.”

Bowie v. Maddox, 642 F.3d 1122, 1136 (D.C. Cir. 2011)

(internal quotation marks and citations omitted).

Appellants first argue that Appellees waived any

privileges and, in the alternative, that no privilege protects the

intelligence materials in dispute. We need not address

whether Appellees properly invoked any privileges over the

intelligence materials because the District Court acted within

its discretion under Federal Rule of Civil Procedure 26(b).

Under Rule 26(b), the scope of discovery is defined, in part,

by “whether the burden or expense of the proposed discovery

outweighs its likely benefit.” FED. R. CIV. P. 26(b)(1).

Indeed, “[o]n motion or on its own, [a] [district] court must

limit the frequency or extent of discovery otherwise allowed .

. . if it determines that . . . the discovery sought is

unreasonably cumulative or duplicative . . . .” FED. R. CIV.

P. 26(b)(2)(C). “Rule 26 vests the trial judge with broad

discretion to tailor discovery narrowly . . . .” Crawford-El v.

Britton, 523 U.S. 574, 598 (1998).

The District Court examined the twenty-five pages of

intelligence materials and concluded, as to the “likely benefit”

of the proposed discovery, that the “documents had no great

significance” to Appellants’ claims. Then, it concluded that

the proposed discovery would “undermine important

interests” of Appellees, quoting Societe Nationale Industrielle

Aerospatiale v. U.S. District Court for the Southern District of

Iowa, 483 U.S. 522 (1987). Appellants argue that the District

15

Court erred because Societe Nationale applies only to

sovereign states and that the Palestinian Authority is not one.

But, that is beside the point; imposition on the “important

interests” of Appellees is properly weighed as a “burden”

under Rule 26(b), without regard to whether any party is a

sovereign. See In re Sealed Case (Medical Records), 381

F.3d 1205, 1215-18 (D.C. Cir. 2004) (reversing an order

granting a motion to compel because the district court failed

to weigh privacy interests as a “burden” under Rule 26). The

District Court, determining that the “burden” of discovery

outweighed the “likely benefit” and discharging its duty to

limit “unreasonably cumulative” discovery, exercised its

“broad discretion [under Rule 26] to tailor discovery narrowly

. . . .” See Crawford-El, 523 U.S. at 598.

Having reviewed the twenty-five pages of foreign

intelligence materials, we conclude the District Court’s

decision was not “clearly unreasonable, arbitrary, or fanciful,”

and therefore not an abuse of discretion. See Bowie, 642 F.3d

at 1136.

V.

Finally, we turn to the District Court’s grant of summary

judgment in Appellees’ favor, which was entirely predicated

on rulings that deemed Appellants’ evidence inadmissible

hearsay.

“Summary judgment is appropriate only if ‘there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.’” Johnson v. Perez,

823 F.3d 701, 705 (D.C. Cir. 2016) (quoting FED. R. CIV. P.

56(a)).

“[W]e review a trial court’s evidentiary rulings for abuse

of discretion and even if we find error, we will not reverse an

16

otherwise valid judgment unless appellant[s] demonstrate[]

that such error affected [their] substantial rights.” Bowie, 642

F.3d at 1134 (citation omitted). The District Court ruled that

Appellants’ evidence was inadmissible hearsay and “sheer

hearsay . . . counts for nothing on summary judgment.” Greer

v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (internal

quotation marks and citations omitted). “While a nonmovant

is not required to produce evidence in a form that would be

admissible at trial, the evidence still must be capable of being

converted into admissible evidence.” Gleklen v. Democratic

Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C.

Cir. 2000) (emphasis in original).

“[E]xcept in the extraordinary situation of plain error, no

error can be claimed if at the time of the judge’s ruling the

counsel had made no offer of proof that would have fulfilled

the condition[s] [of admissibility].” United States v. Burnett,

890 F.2d 1233, 1240 (D.C. Cir. 1989) (citing FED. R. EVID.

103(a)(2), (d)); see also 5 JOSEPH M. MCLAUGHLIN, JACK B.

WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S FEDERAL

EVIDENCE § 103.20[5] (2d ed. 2013) (“In making an offer of

proof, counsel must be careful to articulate every ground on

which the evidence is admissible, since a ground not

identified at trial will not provide a basis for reversal on

appeal.”). The requirements to articulate grounds for

admissibility and to support those grounds with an offer of

proof are especially pertinent where, as here, the proponent

made little effort to assist the District Court in making the

evidentiary rulings.

A.

The District Court excluded two web pages from the

Israel Ministry of Foreign Affairs website, which Appellants

characterized as “Israeli government reports identifying Force

17

17 and Abu Halawa as having executed the murder [of

Gilmore], [which] are admissible under [Federal Rule of

Evidence] 803(8)[].” J.A. 733.

“A record or statement of a public office” is admissible if

“it sets out . . . factual findings from a legally authorized

investigation[] and . . . the opponent does not show that the

source of information or other circumstances indicate a lack

of trustworthiness.” FED. R. EVID. 803(8). “Rule 803(8)[] is

to be applied in a commonsense manner, subject to the district

court’s sound exercise of discretion . . . .” In re Korean Air

Lines Disaster, 932 F.2d 1475, 1481 (D.C. Cir. 1991)

(quotation marks and citation omitted).

At the top of each web page was the banner for the Israel

Ministry of Foreign Affairs and the author of each page was

identified only as “IDF [Israel Defense Forces] Spokesman.”

The first page offered background on Force 17, including an

assertion that it was responsible for “[a] shooting attack in

Jerusalem, in which a security guard was killed and another

wounded (30 October).” J.A. 728. The second page

announced the targeted killing of Halawa, who purportedly

“took part in” Gilmore’s murder. J.A. 729. The pages offer

no information explaining who made the findings or how they

were made.

Before the District Court, Appellants rested on a bare,

one-sentence assertion that the web pages were admissible

under Rule 803(8), but offered no further explication of how

the pages conveyed “factual findings from a legally

authorized investigation,” FED. R. EVID. 803(8). Without

more, the District Court did not abuse its discretion by ruling

18

that the two pages were not admissible under Rule 803(8).

See In re Korean Air Lines Disaster, 932 F.2d at 1481.2

B.

The District Court excluded excerpts from a non-fiction

book entitled The Seventh War, authored by an Israeli

journalist, Avi Issacharoff (“Issacharoff”), who conducted an

interview with a Palestinian prisoner, Karim Aweis

(“Aweis”). The book excerpt offered the following account:

“Halawa told Aweis that he wanted to announce to the media

that he assumed responsibility for the East Jerusalem attack

[killing Gilmore] on behalf of a new military wing of Fatah.”

J.A. 727.

This is triple hearsay: (1) Halawa’s statement to Aweis,

(2) Aweis’s statement to Issacharoff, and (3) Issacharoff’s

written account. In order to be admissible, “each part of the

combined statements [must] conform[] with an exception to

the rule [against hearsay].” FED. R. EVID. 805. The District

Court ruled that Halawa and Aweis’s statements were

inadmissible.

Appellants argue that Aweis’s statement was a party

admission because Aweis was purportedly an “employee” of

the PA. A statement is not hearsay if “[t]he statement is

offered against an opposing party and . . . was made by the

2

Appellants now point to other record materials that may have

supported admission under Rule 803(8). However, Appellants did

not make this offer of proof to the District Court and, therefore,

failed to preserve a claim of error on the basis of those materials.

See Burnett, 890 F.2d at 1240 (“[E]xcept in the extraordinary

situation of plain error, no error can be claimed if at the time of the

judge’s ruling the counsel had made no offer of proof that would

have fulfilled the condition[s] [of admissibility].”).

19

party’s agent or employee on a matter within the scope of that

relationship and while it existed.” FED. R. EVID.

801(d)(2)(D). At the time of his statement, Aweis was

serving six life sentences in prison, but was receiving

payments from the PA’s Ministry of Prisoners and was

purportedly continuing to receive military promotions.

“Ordinarily, an agency relationship arises only where the

principal has the right to control the conduct of the agent with

respect to matters entrusted to the agent . . . .” Atrium of

Princeton, LLC v. NLRB, 684 F.3d 1310, 1315 (D.C. Cir.

2012) (internal quotation marks, alterations, and citations

omitted); see also RESTATEMENT (THIRD) OF AGENCY § 1.01

cmt. c (AM. LAW INST. 2006) (“The common law of

agency . . . encompasses the employment relation . . . .”).

Appellants did not offer any evidence that, at the time of

Aweis’s statement, Appellees still “ha[d] the right to control

[his] . . . conduct.” Therefore, the District Court did not abuse

its discretion by concluding that Aweis’s statement was not a

party admission.

Since it was not an abuse of discretion to exclude

Aweis’s statement, it was also not an abuse of discretion to

exclude the passage from The Seventh War, which recounted

Aweis’s statement. See FED. R. EVID. 805 (“[E]ach part of the

combined statements [must] conform[] with an exception to

the rule [against hearsay].”).

C.

The District Court excluded the statement made by

Mustafa Maslamani (“Maslamani”) while he was in the

custody of Israeli police. Maslamani wrote and signed a

statement that read: “I myself, [Halawa,] and [one other

person] were in a coffeehouse in Ramallah and the three of us

were talking . . . and . . . Hallawa [sic] [said that] he

20

perpetrated terrorist attacks,” including the one that killed

Gilmore. J.A. 149.

Appellants argued that this statement was admissible as a

statement against interest. Assuming, without deciding, that

Maslamani was “unavailable,” Appellants must still

demonstrate that a “reasonable person in the declarant’s

position” would think the statement “expose[d] the declarant

to civil or criminal liability.” FED. R. EVID. 804(b)(3); accord

United States v. Wilson, 160 F.3d 732, 739 (D.C. Cir. 1998).

“The rationale of the statement against interest exception is

that a reasonable person will not make a damaging statement

against himself or herself unless it is true.” 5 JOSEPH M.

MCLAUGHLIN, JACK B. WEINSTEIN & MARGARET A. BERGER,

WEINSTEIN’S FEDERAL EVIDENCE § 804.06[4][c] (2d ed.

2013).

Maslamani’s statement did not expose him to liability; he

inculpated Halawa for Gilmore’s murder while exculpating

himself. Appellants argue that Maslamani’s statements

indicated his knowledge of and association with the criminal

activities of Force 17, which exposed him to liability.

However, Rule 804(b)(3) “does not allow admission of non-

self-inculpatory statements, even if they are made within a

broader narrative that is generally self-inculpatory.”

Williamson v. United States, 512 U.S. 594, 600-01 (1994); see

also FED. R. EVID. 804 advisory committee’s note to

Exception (3) (“[A] statement admitting guilt and implicating

another person, made while in custody, may well be

motivated by a desire to curry favor with the authorities and

hence fail to qualify as against interest.”). Therefore, the

District Court did not abuse its discretion by concluding that

Maslamani’s statement did not “expose [him] to civil or

criminal liability[,]” FED. R. EVID. 804(b)(3), and was not

admissible under Rule 804(b)(3).

21

D.

The District Court excluded the statement of Bashar

Khatib (“Khatib”), Halawa’s colleague, made during the trial

of their supervisor, Mahmoud Damara (“Damara”). While in

the custody of Israeli police, Khatib stated that he was the

driver and Halawa was the shooter in Gilmore’s murder.

During the trial of Damara, Khatib testified about the

custodial statements he made to the police. Later, during the

deposition in this case, Khatib denied having any knowledge

of Gilmore’s murder and refused to explain any purported

inconsistency with his testimony at trial.

Appellants argue that, at trial, Khatib confirmed the

veracity of his custodial statement and, therefore, the trial

testimony is admissible as a prior inconsistent statement

“because Khatib repudiated that sworn trial testimony in his

deposition in this case.” A statement is not hearsay if “[t]he

declarant testifies and is subject to cross-examination about a

prior statement, and the statement . . . is inconsistent with the

declarant’s testimony and was given under penalty of perjury

at a trial, hearing, or other proceeding or in a deposition.”

FED. R. EVID. 801(d)(1)(A).

Appellants try to invoke Rule 801(d)(1)(A) based on a

purported inconsistency between Khatib’s deposition

testimony in this case and his prior trial testimony in

Damara’s Israeli trial. Appellees argue that the statement fails

to meet the requirements of the hearsay exception. We need

not resolve all of the intricacies of this dispute. Even

assuming Rule 801(d)(1)(A) applied to this circumstance, the

Rule’s requirements are not met because the District Court

reasonably concluded that the statements were not

inconsistent. At the Israeli trial, Khatib was asked questions

about a variety of incidents and people, including Halawa,

22

Bashir Nafa, Omar Ka’adan, and Damara. When asked about

Gilmore’s murder, he repeatedly insisted that it had “no

connection to us” and refused to confirm his custodial

statement regarding Halawa’s involvement. Trial Tr. at 7,

J.A. 667. Khatib was then asked: “According to what I

understand from you, everything you have said about

Muhannad Abu Halawa, about Bashir Nafa, Omar Ka’adan,

everything is correct but whatever is related to [Damara] is

incorrect. Correct?” Id. at 8, J.A. 669. Khatib responded:

“Yes.” Id.

Appellants argue that this one-word answer to a

compound question is confirmation, contrary to the rest of

Khatib’s testimony, of his custodial statement implicating

Halawa. The District Court found “it [was] not at all clear

that . . . Khatib understood himself to be affirming the truth of

his prior statements implicating . . . Halawa.” J.A. 866.

Given the trial testimony’s lack of clarity, it was not an abuse

of discretion for the District Court to conclude that Khatib’s

trial and deposition testimony were not inconsistent – he

continuously refused to confirm his custodial statement – and

that, therefore, the trial testimony could not be admitted as a

prior inconsistent statement.3

E.

Finally, the District Court declined to admit the report of

Appellants’ expert, Alon Eviatar (“Eviatar”). Eviatar, a

3

Appellants now also argue that Khatib’s testimony is admissible

as a statement against interest and as former testimony. However,

by not raising those grounds in the lower court proceedings,

Appellants failed to preserve the claim of error. See FED. R. EVID.

103(a). Furthermore, Appellants make no attempt to explain how

this case presents “the extraordinary situation of plain error” that

would excuse their failure. Burnett, 890 F.2d at 1240.

23

former Israel Defense Forces intelligence officer and

Department Head of Palestinian Affairs, examined all of the

evidence described above and opined that it was “more likely

than not that . . . Halawa carried out the October 30, 2000

murder of Mr. Gilmore.”

District courts are assigned “the task of ensuring that an

expert’s testimony both rests on a reliable foundation and is

relevant to the task at hand.” Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 597 (1993). The test of

reliability is “flexible” and “the law grants a district court the

same broad latitude when it decides how to determine

reliability as it enjoys in respect to its ultimate reliability

determination.” Kumho Tire Co. v. Carmichael, 526 U.S.

137, 142 (1999). “[T]he expert must form his own opinions

by ‘applying his extensive experience and a reliable

methodology’ to the inadmissible materials. Otherwise, the

expert is simply ‘repeating hearsay evidence without applying

any expertise whatsoever,’ a practice that allows the

[proponent] to ‘circumvent the rules prohibiting hearsay.’”

United States v. Mejia, 545 F.3d 179, 197 (D.C. Cir. 2008)

(quoting United States v. Dukagjini, 326 F.3d 45, 58-59 (2d

Cir. 2002)).

The District Court found that Eviatar did not apply “a

reliable methodology” to form his opinion about the

inadmissible materials. Eviatar briefly described how, “as a

rule,” the strength of analyses are evaluated by: “(i) the nature

and/or quality of the available information and data; (ii) the

variety and diversity of the sources and/or types of

information and data; and (iii) cumulative experience and

knowledge and professional instincts and intuition.” Expert

Report at 13, J.A. 899. However, he did not explain how this

methodology led to his opinions. It was also unclear how

Eviatar’s approach differed from that of a layperson; “where

24

the jury is just as competent to consider and weigh the

evidence as is an expert witness and just as well qualified to

draw the necessary conclusions therefrom, it is improper to

use opinion evidence for the purpose.” Henkel v. Varner, 138

F.2d 934, 935 (D.C. Cir. 1943). Therefore, in light of the

“broad latitude” to decide how to determine reliability,

Kumho, 526 U.S. at 141-42, it was not an abuse of discretion

for the District Court to deny the admission of Eviatar’s

expert report.

F.

In sum, the District Court did not abuse its discretion in

excluding Appellants’ evidence. The only evidence

connecting Halawa – and, therefore, Appellees – to Gilmore’s

murder is inadmissible hearsay. “[S]heer hearsay . . . counts

for nothing on summary judgment.” Greer, 505 F.3d at 1315.

Accordingly, the District Court did not err in granting

summary judgment in favor of Appellees. See FED. R. CIV. P.

56(a).

VI.

For the foregoing reasons, we affirm the judgment of the

District Court.

So ordered.