Rivka Livnat v. Palestinian Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2016 Decided March 24, 2017

No. 15-7024

RIVKA LIVNAT, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF BEN-YOSEF LIVNAT, ET

AL.,

APPELLANTS

v.

PALESTINIAN AUTHORITY, A/K/A THE PALESTINIAN INTERIM

SELF-GOVERNMENT AUTHORITY,

APPELLEE

Consolidated with 15-7025

Appeals from the United States District Court

for the District of Columbia

(No. 1:14-cv-00668)

(No. 1:14-cv-00669)

Jessica P. Weber argued the cause for appellants. With her

on the briefs were Andrew D. Levy and Alan I. Baron.

Peter Raven-Hansen and David A. Reiser were on the

brief for amici curiae Former Federal Law Enforcement

Officials in support of appellants.

2

Mitchell R. Berger argued the cause for appellee. With

him on the brief were Pierre H. Bergeron, John Burlingame,

Alexandra E. Chopin, and Gassan A. Baloul.

Before: GRIFFITH and WILKINS, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: In 2011, Jewish worshippers

were shot by armed gunmen at Joseph’s Tomb, a holy site in

the West Bank believed by many to be the burial place of the

biblical patriarch. Among the victims were Ben-Yosef Livnat,

who was killed, and U.S. citizens Yitzhak Safra and Natan

Safra, who were wounded in the gunfire. The Livnat and Safra

families brought suit in federal district court seeking to hold the

Palestinian Authority vicariously liable for the attack. For the

reasons set forth below, we conclude that the suits may not be

brought in the courts of the United States.

I

According to the Livnats and Safras, the perpetrators of

the attack were the security guards hired to protect Joseph’s

Tomb by the Palestinian Authority. The Palestinian Authority

is a government headquartered in the West Bank city of

Ramallah. Established following the 1993 Oslo Accords

between Israel and the Palestine Liberation Organization, the

Palestinian Authority administers civilian and internal security

services in parts of the West Bank and the Gaza Strip. External

security remains within Israel’s control. See Interim

Agreement on the West Bank and the Gaza Strip, Isr.-P.L.O.,

art. X, Sept. 28, 1995, 36 I.L.M. 551, 561 [hereinafter Oslo II].

The Oslo Accords also circumscribe the Palestinian

Authority’s “powers and responsibilities in the sphere of

3

foreign relations.” Id. art. IX, 36 I.L.M. at 561. The Palestinian

Authority has non-member observer status in the United

Nations and receives foreign aid from the United States, the

European Union, and other sources. The United States does not

recognize the Palestinian Authority as a government of a

sovereign state.

The families allege that the guards who perpetrated the

attack at Joseph’s Tomb were acting within the scope of their

employment by the Palestinian Authority, which knew that the

commander of the guards had served time in Israeli prison on

terrorism-related charges. The families claim that the attack

was directed at the United States as “part and parcel of” the

Palestinian Authority’s “general practice of using terrorism to

influence United States public opinion and policy.” Compl. at

5, Livnat v. Palestinian Auth., No. 1:14-cv-00668 (D.D.C. Apr.

21, 2014); Compl. at 3, Safra v. Palestinian Auth., No.

1:14-cv-00669 (D.D.C. Apr. 21, 2014).

The Livnats and Safras filed identical lawsuits against the

Palestinian Authority in federal district court, bringing claims

under both the Antiterrorism Act, 18 U.S.C. § 2333, and

common-law tort. The Palestinian Authority moved to dismiss

for lack of personal jurisdiction, among other grounds. The

families opposed and filed cross-motions for leave to take

jurisdictional discovery. The court denied the families’

cross-motions for jurisdictional discovery, reasoning that their

proposed discovery would have been futile, and granted the

motions to dismiss.

The district court addressed the issue of personal

jurisdiction under Federal Rule of Civil Procedure 4(k)(2),

concluding that the Livnats and Safras had forfeited all other

statutory bases for personal jurisdiction. Livnat v. Palestinian

Auth., 82 F. Supp. 3d 19, 24-25 & n.9 (D.D.C. 2015); Safra v.

4

Palestinian Auth., 82 F. Supp. 3d 37, 43 & n.8 (D.D.C. 2015).

Rule 4(k)(2) permits a federal court to exercise personal

jurisdiction if the claim arises under federal law, process was

properly served, the defendant is not subject to jurisdiction in

any state court of general jurisdiction, and—the requirement at

issue here—jurisdiction “is consistent with the United States

Constitution and laws.” FED. R. CIV. P. 4(k)(2). The district

court held that this last requirement was not met. Applying the

Due Process Clause of the Fifth Amendment, the court found

that the Palestinian Authority was not “at home” in the United

States and that the attack was not sufficiently directed at the

United States.

The Livnats and Safras timely appealed, and their cases

are consolidated here. We have jurisdiction under 28 U.S.C.

§ 1291. In both cases, we review de novo the district court’s

dismissal for lack of personal jurisdiction, and we review for

abuse of discretion the denial of jurisdictional discovery. FC

Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir.

2008).

II

The question before us is whether the Fifth Amendment’s

Due Process Clause permits personal jurisdiction over the

Palestinian Authority in these disputes. We begin with the

contention by the Livnats and Safras that the Clause imposes

no limits at all on personal jurisdiction over the Palestinian

Authority.

A

In International Shoe Co. v. Washington, 326 U.S. 310

(1945), the Supreme Court gave the now-canonical

explanation of what “due process requires” before a defendant

outside a forum’s borders may be subject to suit: the defendant

5

must “have certain minimum contacts with [the forum] such

that the maintenance of the suit does not offend ‘traditional

notions of fair play and substantial justice.’” Id. at 316 (quoting

Milliken v. Meyer, 311 U.S. 457, 463 (1940)). Accordingly, we

have explained that the Fifth Amendment’s Due Process

Clause protects defendants from “being subject to the binding

judgments of a forum with which [they have] established no

meaningful contacts, ties, or relations,” and requires “fair

warning that a particular activity may subject them to the

jurisdiction of a foreign sovereign.” Mwani v. bin Laden, 417

F.3d 1, 11 (D.C. Cir. 2005) (quoting Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 472 (1985)).

This general rule, however, has a few narrow exceptions.

Constitutional limits on the personal jurisdiction of the courts

do not protect entities that are not covered by the Due Process

Clause, and the language of the Clause speaks only of

“persons.” U.S. CONST. amend. V (“No person shall . . . be

deprived of life, liberty, or property, without due process of

law . . . .”). The Supreme Court held in South Carolina v.

Katzenbach, 383 U.S. 301 (1966), that States of the Union are

not “persons” under the Clause. Id. at 323-24. And we held in

Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d

82 (D.C. Cir. 2002), that neither are foreign states. Id. at 96.

Nor is the Palestinian Authority, according to the

appellants, who urge us to extend Price to the Palestinian

Authority by holding that Price applies not just to sovereign

foreign states, but to any foreign entity that “functions as a

government.” Appellants’ Br. 19.

We reject appellants’ reading of Price. To begin with,

Price represents a rare exception to the general rule that the

Due Process Clause protects all litigants in our courts,

especially by limiting the power of courts to hale defendants

6

before them. We are reluctant to undermine this general rule by

widening the Price exception. Indeed, we have previously

assumed that Price is narrower than the appellants maintain,

understanding its holding to be that “foreign sovereigns . . . are

not ‘persons’ under the Fifth Amendment’s Due Process

Clause.” GSS Grp. Ltd v. Nat’l Port Auth., 680 F.3d 805, 809

(D.C. Cir. 2012) (emphasis added); see also id. at 813

(describing Price’s reasoning as “put[ting] foreign sovereigns

in a separate constitutional category from ‘private entities’”

(emphasis added) (quoting Price, 294 F.3d at 98)).

We confirm that measured interpretation of Price today.

The rule in Price—that foreign states are not “persons” under

the Due Process Clause—applies only to sovereign foreign

states. 1 Nothing in Price, other precedent, or the appellants’

arguments compels us to extend the rule in Price to all foreign

government entities. And no party here argues that the

Palestinian Authority is a sovereign foreign state.

B

In Price, we held that the federal courts had personal

jurisdiction over Libya despite its lack of “minimum contacts”

with the United States, because “foreign states are not

‘persons’ protected by the Fifth Amendment.” 294 F.3d at 96.

We reached this conclusion for two principal reasons. First, in

light of Katzenbach’s holding that States of the Union are not

“persons” under the Due Process Clause, we decided that

foreign states are similarly situated. Id. at 96-97. Observing

1

We merely clarify what qualifies as a “foreign state” under

Price. Our holding does not bear on the separate question of whether

“an agency or instrumentality” of a foreign state “has a constitutional

status different from that of” the foreign state itself under the Due

Process Clause. TMR Energy Ltd. v. State Prop. Fund of Ukr., 411

F.3d 296, 301 (D.C. Cir. 2005).

7

that “in common usage, the term ‘person’ does not include the

sovereign,” id. at 96 (quoting Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 64 (1989)), and that “person” in the Due

Process Clause had already been interpreted to exclude States

of the Union, we asked whether there was any “compelling

reason to treat foreign sovereigns more favorably,” id. We

could identify none, because if anything the Constitution treats

foreign sovereigns less favorably. The States of the Union

“derive important benefits” from the Constitution (such as

protection against invasion, U.S. CONST. art IV, § 4) in

exchange for “abid[ing] by significant limitations” (such as the

supremacy of federal law, U.S. CONST. art. VI, cl. 2). Price,

294 F.3d at 96. By contrast, foreign states “are entirely alien to

our constitutional system,” and the Constitution neither confers

benefits nor imposes limitations as it does for States of the

Union. Id. at 97, 99. We concluded that “it would be highly

incongruous to afford greater Fifth Amendment rights to

foreign nations” than to States of the Union. Id. at 96.

Second, we explained that foreign states, as “the juridical

equals of the government that seeks to assert jurisdiction over

them,” can rely on “mechanisms in the international arena,”

instead of domestic law, to protect themselves. Id. at 98.

Therefore, foreign states can rely on those other protections

against U.S. government power, and do not need the Due

Process Clause. Id. at 97-99.

We also mentioned that it was “worth noting” that “serious

practical problems might arise” if foreign states enjoyed

due-process rights. Id. at 99. For example, foreign states might

challenge economic sanctions as violations of due process. Id.

We avoided such problems by holding that the Due Process

Clause does not protect foreign states.

8

The appellants contend that Price’s reasoning applies

equally in this case. But in Price, we had a particular type of

entity in mind. When addressing whether the Due Process

Clause applies to “foreign states,” we used that term

interchangeably with foreign “nations,” “governments,” and

“sovereigns.” See id. at 95-100. Libya was a “sovereign

nation” fairly described by all of those terms. Id. at 98. This

case is different. Both parties acknowledge that the Palestinian

Authority is not recognized by the United States as a

government of a sovereign state. And the appellants—even

though they seek to apply Price’s holding here—concede that

the Palestinian Authority is not sovereign in “law” or “fact,”

apparently referring to the Palestinian Authority’s limited

powers and incomplete independence from Israel. Appellants’

Br. 17 & n.3 (citing Ungar v. Palestine Liberation Org., 402

F.3d 274 (1st Cir. 2005), which held that the “reserved powers”

that Israel retained under the Oslo Accords “are incompatible

with the notion that the [Palestinian Authority] had

independent governmental control over the defined territory,”

and therefore the Palestinian Authority was not a foreign

“state” entitled to sovereign immunity, id. at 291). The

question, then, is whether Price’s rationales depended on the

fact that Libya was sovereign, or whether they extend to any

foreign government entity, even if not recognized as sovereign

by the United States and potentially lacking ultimate,

independent governing authority in key respects.

We think the former is correct: Price’s primary rationales

hinge on sovereignty. First, Price’s rationale that foreign states

have the same status as States of the Union under the Due

Process Clause is based on the notion that both are sovereign.

Indeed, our whole discussion of foreign states and States of the

Union was a comparison of two sets of sovereign entities. After

all, we started that discussion by observing that “in common

usage, the term ‘person’ does not include the sovereign.” Id. at

9

96 (quoting Will, 491 U.S. at 64). The analysis that followed

that observation considered whether the settled law that the

term “person” in the Due Process Clause excludes one set of

sovereigns—States of the Union—meant that the term also

excluded another set of sovereigns—foreign states. And in

considering that question, we compared how the Constitution

governs States of the Union and foreign states with respect to

attributes of sovereignty like sovereign immunity, territorial

security, and judicial power. Id. at 96, 99. These are attributes

that non-sovereign foreign governments might lack—for

instance, the Palestinian Authority lacks power to secure its

territory against external threats. See Oslo II, art. X, 36 I.L.M.

at 561. Thus, in Price, we compared foreign states and States

of the Union not as run-of-the-mill entities, or even just as

governments, but rather as sovereigns.

Ignoring the underlying premise that States of the Union

and foreign states are both sovereigns, the appellants instead

focus on a different aspect of Price’s comparison of the two.

They note that Price described foreign states, unlike States of

the Union, as “alien to our constitutional system,” 294 F.3d at

96, and argue that Price’s rule for foreign states must also

apply to non-sovereign foreign governments because they are

also “alien.”

That is wrong several times over. For one, we have already

rejected the notion that “alien” entities are disqualified from

due-process protection. “Both the Supreme Court and this

court have repeatedly held that foreign corporations may

invoke due process protections to challenge the exercise of

personal jurisdiction over them,” even though those entities are

“just as ‘alien to our constitutional system’ as the Libyan

government was in Price.” GSS, 680 F.3d at 813 (quoting

Price, 294 F.3d at 96). Furthermore, “alien” status became

relevant in Price only after we began comparing foreign states

10

to States of the Union. Once we recognized that foreign states

were comparable to States of the Union in that both are

sovereign, we considered whether there was any “compelling

reason to treat foreign sovereigns more favorably.” 294 F.3d at

96. Because foreign states are “alien to our constitutional

system” while the States are “integral” to the “Constitution’s

infrastructure,” we found implausible the notion that the

Constitution would treat foreign states more favorably. Id. But

for entities that are not sovereign, the initial analogy to States

of the Union never gets off the ground; whether they are

“alien” does not matter.

Price’s second rationale, that international mechanisms

displace domestic law for foreign states, also does not work for

non-sovereign entities. Comity and international law “set the

terms by which sovereigns relate to one another.” Id. at 98

(emphasis added). By contrast, an entity that is not the

“juridical equal” of the United States—such as a

non-sovereign—lacks the “panoply of mechanisms in the

international arena” that a sovereign state like Libya can use to

resolve disputes with the United States. Id. Significantly, direct

dispute-resolution mechanisms are generally available only to

entities that are juridical equals in the eyes of the United States,

because political recognition “is a precondition of regular

diplomatic relations.” Zivotofsky v. Kerry, 135 S. Ct. 2076,

2084 (2015). Moreover, further underscoring that Price’s

rationale depends on sovereignty, the United States recognizes

special privileges, based on comity and international-law

principles, for sovereigns alone. See, e.g., Banco Nacional de

Cuba v. Sabbatino, 376 U.S. 398, 408-09 (1964) (“Under

principles of comity governing this country’s relations with

other nations, sovereign states are allowed to sue in the courts

of the United States.”); id. at 401 (describing the “act of state

doctrine,” which “precludes the courts of this country from

inquiring into the validity of the public acts a recognized

11

foreign sovereign power committed within its own territory”);

F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155,

164 (2004) (“[T]his Court ordinarily construes ambiguous

statutes to avoid unreasonable interference with the sovereign

authority of other nations.”); cf. Foreign Sovereign Immunities

Act, 28 U.S.C. §§ 1602 et seq.

To be sure, even non-sovereigns can participate in some

forms of international relations. But that participation is

limited. See 1 OPPENHEIM’S INTERNATIONAL LAW § 35 (9th ed.

2008) (recognizing that “there is no doubt” that non-sovereign

entities “cannot be full, perfect, and normal subjects of

international law”); JAMES CRAWFORD, BROWNLIE’S

PRINCIPLES OF PUBLIC INTERNATIONAL LAW 448 (8th ed. 2012)

(explaining that “sovereignty” includes a state’s “capacity to

act on the international plane, representing that territory and its

people”); LOUIS HENKIN ET AL., INTERNATIONAL LAW 241-42

(3d ed. 1993) (“[D]espite the dogma that only sovereign states

could be subjects of international law, many other entities” can

be “regarded as international legal persons for certain purposes

and in some respects,” but “these developments should not

obscure the primary and predominant role of the state as the

subject of international law.” (emphasis added)). Because they

lack the full range of rights and obligations that sovereigns

have under international law, non-sovereigns—unlike the

defendant in Price—cannot rely on comity and

international-law protections to the exclusion of domestic law.

Finally, Price’s concern that recognizing due-process

rights might pose “practical problems,” 294 F.3d at 99, does

not change our conclusion that Price’s holding applies to

sovereigns alone. The appellants argue that problems might

arise if non-sovereigns raised due-process challenges to

foreign-policy decisions regarding foreign aid, for instance.

But no such problems have arisen thus far, even though courts

12

have assumed that non-sovereign governments have

due-process rights. Cf., e.g., Livnat v. Palestinian Auth., 82 F.

Supp. 3d 19, 26 (D.D.C. 2015) (collecting district-court cases

recognizing the Palestinian Authority’s due-process rights).

And in any event, our decision today does not define the

content of any due-process rights outside the narrow context of

personal jurisdiction.

C

This is not the first time that we have applied

personal-jurisdiction protections under the Due Process Clause

to a non-sovereign foreign government. In Toumazou v.

Turkish Republic of Northern Cyprus, No. 14-7170 (D.C. Cir.

Jan. 15, 2016), an unpublished judgment, plaintiffs invoked

Rule 4(k)(2) to establish personal jurisdiction over the Turkish

Republic of Northern Cyprus (TRNC), a self-declared state

that the United States does not recognize as sovereign, see U.S.

Relations with Cyprus, U.S. DEP’T OF STATE (Sept. 29, 2016),

http://www.state.gov/r/pa/ei/bgn/5376.htm. We did not apply

the rule from Price. Instead, we conducted the usual

due-process inquiry, examining “the defendant’s contacts with

the forum,” and ultimately concluding that personal

jurisdiction was inconsistent with due process. Toumazou, slip

op. at 2 (citing Goodyear Dunlop Tires Operations, S.A. v.

Brown, 131 S. Ct. 2846, 2851 (2011)).

The Second Circuit likewise applies due-process standards

for personal jurisdiction when the defendant is a non-sovereign

foreign government. In Waldman v. Palestine Liberation

Organization, 835 F.3d 317 (2d Cir. 2016), a case substantially

similar to the case before us, the Second Circuit held that the

Palestinian Authority and the Palestine Liberation

Organization are both “persons” under the Fifth Amendment’s

Due Process Clause. Id. at 329. The Second Circuit explained

13

that only “separate sovereigns, recognized by the United States

government as sovereigns,” are foreign states left unprotected

by the Due Process Clause. Id. Both the Palestinian Authority

and the Palestine Liberation Organization remain protected by

the Due Process Clause under that rule, because neither is so

recognized. Id. We agree, at least to the extent that only

sovereign entities are excluded from due-process protection as

foreign states. As explained below, however, while the Second

Circuit uses political recognition as the sole definition of

sovereignty for due-process purposes, we leave open whether

additional considerations could be relevant in future cases.

D

The appellants offer several other arguments why

non-sovereign governments like the Palestinian Authority are

not entitled to due-process protection. None is persuasive.

First, they argue that our decisions in TMR Energy Ltd. v. State

Property Fund of Ukraine, 411 F.3d 296 (D.C. Cir. 2005), and

GSS Group Ltd v. National Port Authority, 680 F.3d 805 (D.C.

Cir. 2012), support their position. Those cases held that

“[w]henever a foreign sovereign controls an instrumentality to

such a degree that a principal-agent relationship arises between

them,” then the instrumentality, like the sovereign, receives no

due-process protection. GSS, 680 F.3d at 815; see also TMR,

411 F.3d at 301. That is, if an instrumentality is sufficiently

close to its government, then the Price rule applies. The

appellants insist that under this principle, the Price rule applies

here too, because the Palestinian Authority “is not merely a

state-owned corporation,” it “is the government.” Appellants’

Br. 21. That is a non sequitur. Whether government

instrumentalities receive the same due-process protection as

their government (the question in TMR and GSS) has nothing

to do with whether a government receives due-process

protection in the first place (the question here).

14

Next, the appellants suggest that other non-sovereign

government entities, such as municipalities, do not receive

due-process protections, demonstrating a general principle that

governments cannot be “persons” under the Due Process

Clause. But the only appellate decision they cite, City of East

St. Louis v. Circuit Court, 986 F.2d 1142 (7th Cir. 1993), is

inapposite. In that case, the Seventh Circuit held that

municipalities are not “persons” under the Due Process

Clauses. See id. at 1144. But the court did not reason, as the

appellants do, that no government can receive due-process

protection. Rather, the court relied on the unrelated principle

that municipalities are creatures of a State and therefore lack

any constitutional rights against the State. See id. (citing Vill. of

Arlington Heights v. Reg’l Transp. Auth., 653 F.2d 1149, 1152

(7th Cir. 1981) (citing City of Newark v. New Jersey, 262 U.S.

192, 196 (1923) (“The city cannot invoke the protection of the

Fourteenth Amendment against the state.”))); see also City of

Trenton v. New Jersey, 262 U.S. 182, 187 (1923) (“[A

municipality is] the creature of the state exercising and holding

powers and privileges subject to the sovereign will.”). 2, 3

Finally, the appellants argue that applying due-process

protections to limit personal jurisdiction in Antiterrorism Act

2

It is not even clear whether political subdivisions of a state

lack due-process rights. See South Dakota v. U.S. Dep’t of Interior,

665 F.3d 986, 990 n.4 (8th Cir. 2012) (describing the circuits as split

on the issue). We take no position on the matter, but simply observe

that the cases that address the issue do not resolve the question here.

3

The appellants also cite a smattering of trial-court cases

denying due-process rights to government entities such as political

subdivisions of states, U.S. territories, and other Palestinian

organizations. None of those cases explains why being a government

would disqualify an entity from the protections of due process.

15

cases would thwart Congress’s intent to provide redress in U.S.

courts for terrorism abroad. But there is no indication that

Congress thought ordinary due-process requirements would

not apply here. And regardless, Congress cannot wish away a

constitutional provision.

* * *

We conclude that Price’s narrow exception to the general

due-process personal-jurisdiction rule applies only to foreign

sovereigns. Here, no party argues that the Palestinian Authority

is sovereign by any definition. Appellants’ Br. 17 (denying the

Palestinian Authority’s sovereignty “in fact, in law, and as

reflected in the official positions of the United States and other

countries”); Appellee’s Br. 20-21 (“[I]t is undisputed that the

PA is not sovereign in the view of the United States.”

(emphasis in original)). 4 Accordingly, Price does not apply,

and therefore the district court had personal jurisdiction over

the Palestinian Authority only if consistent with due-process

limits.

III

Our analysis of constitutional limits on personal

jurisdiction is governed by the Due Process Clause of the Fifth

4

We therefore have no occasion in this case to define the

precise limits of what constitutes a “sovereign” excluded from

personhood under the Due Process Clauses. At the very least, any

such definition must be consistent with Price’s twin rationales,

which are limited to entities that (1) are analogous to States of the

Union, and (2) have recourse to comity and international-law

protections as do “juridical equals” of the United States. In the mine

run of cases, whether the United States recognizes the entity as

sovereign will determine whether those rationales apply. But we do

not attempt to address today the full range of considerations that may

arise on different facts in future cases.

16

Amendment. That is unusual, because most cases in the courts

of the United States concern Federal Rule of Civil Procedure

4(k)(1), which directs courts to determine whether a state court

would have personal jurisdiction, an analysis governed by the

Fourteenth Amendment. But the families assert personal

jurisdiction under Rule 4(k)(2), which examines the federal

court’s jurisdiction, an analysis governed by the Fifth

Amendment.

According to the Livnats, Safras, and amici, the Fifth

Amendment’s Due Process Clause imposes

personal-jurisdiction restrictions that are less protective of

defendants than those imposed by the Fourteenth Amendment.

Therefore, they argue, we should ignore the standards

announced in Daimler AG v. Bauman, 134 S. Ct. 746 (2014),

and other Supreme Court personal-jurisdiction cases decided

under the Fourteenth Amendment. Instead, they urge us simply

to balance the interests favoring and disfavoring jurisdiction.

Under that approach, contacts with the United States that

would be insufficient under the Fourteenth Amendment might

justify personal jurisdiction under the Fifth.

In support of their newly devised theory of the Fifth

Amendment, the Livnats, Safras, and amici argue that the Fifth

Amendment is less concerned with circumscribing the power

of courts than is the Fourteenth Amendment. The Fourteenth

Amendment limits the power of state courts so as to “prevent[]

states from encroaching upon each other’s sovereignty.”

Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distribs.

Pty. Ltd., 647 F.2d 200, 203 n.4 (D.C. Cir. 1981). These

federalism concerns do not apply, however, in the Fifth

Amendment context, because that Amendment limits only the

federal government, not the states. Accordingly, Fifth

Amendment jurisdictional limits should be more

permissive—or so the argument goes.

17

That argument buckles under the weight of precedent. No

court has ever held that the Fifth Amendment permits personal

jurisdiction without the same “minimum contacts” with the

United States as the Fourteenth Amendment requires with

respect to States. To the contrary, both the Supreme Court and

this court have applied Fourteenth Amendment

personal-jurisdiction standards in Fifth Amendment cases. See

Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 620

(1992) (concluding that the Fifth Amendment’s Due Process

Clause did not foreclose personal jurisdiction because the

defendant had “purposefully availed itself of the privilege of

conducting activities within the United States” (alterations

omitted) (quoting Burger King Corp. v. Rudzewicz, 471 U.S.

462, 475 (1985))); Mwani v. bin Laden, 417 F.3d 1, 11-14

(D.C. Cir. 2005); Gilson v. Republic of Ireland, 682 F.2d 1022,

1028-29 (D.C. Cir. 1982). To be sure, neither the Supreme

Court nor this court has expressly analyzed whether the Fifth

and Fourteenth Amendment standards differ. But the Second,

Sixth, Seventh, Eleventh, and Federal Circuits have, and all

agree that there is no meaningful difference in the level of

contacts required for personal jurisdiction. 5 The only

5

See Waldman, 835 F.3d at 330 (“[The Second Circuit’s]

precedents clearly establish the congruence of due process analysis

under both the Fourteenth and Fifth Amendments.”); Carrier Corp.

v. Outokumpu Oyj, 673 F.3d 430, 449 (6th Cir. 2012) (holding that

the Fifth Amendment personal-jurisdiction analysis “parallels” the

Fourteenth Amendment analysis); Abelesz v. OTP Bank, 692 F.3d

638, 660 (7th Cir. 2012) (finding “no merit” in the argument that

invoking the Fifth Amendment “relaxes the minimum-contacts

inquiry”); Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210,

1219 n.25 (11th Cir. 2009) (using Fourteenth Amendment cases to

“guide” the Fifth Amendment personal-jurisdiction analysis because

“the language and policy considerations of [the two clauses] are

virtually identical”); Deprenyl Animal Health, Inc. v. Univ. of

Toronto Innovations Found., 297 F.3d 1343, 1350 (Fed. Cir. 2002)

18

difference in the personal-jurisdiction analysis under the two

Amendments is the scope of relevant contacts: Under the

Fourteenth Amendment, which defines the reach of state

courts, the relevant contacts are state-specific. Under the Fifth

Amendment, which defines the reach of federal courts,

contacts with the United States as a whole are relevant. 6 That

difference is not at play in this case.

The justifications offered by the Livnats, Safras, and amici

for their novel theory do not persuade us to depart from this

uniform precedent. They observe that Fifth Amendment

personal-jurisdiction standards do not safeguard federalism

like Fourteenth Amendment standards do. But personal

jurisdiction is not just about federalism. A “vital” purpose of

personal-jurisdiction standards is to “ensure[] fairness to the

defendant.” Stabilisierungsfonds Fur Wein, 647 F.2d at 203

(“Although it was developed in the context of the due process clause

of the Fourteenth Amendment, we apply the standard articulated in

International Shoe Co. v. Washington, 326 U.S. 310 (1945), and its

progeny to Fifth Amendment due process cases . . . .”).

6

Some courts have also suggested that under the Fifth

Amendment, even if the defendant has sufficient nationwide

contacts, a plaintiff must additionally justify jurisdiction in the

particular state. See, e.g., Peay v. BellSouth Med. Assistance Plan,

205 F.3d 1206, 1211 (10th Cir. 2000) (“[D]ue process requires

something more” than permitting jurisdiction “as long as

[defendants] have minimum contacts with the United States as a

whole.”); Republic of Panama v. BCCI Holdings (Lux.) S.A., 119

F.3d 935, 947 (11th Cir. 1997) (“[E]ven when a defendant resides

within the United States, courts must ensure that requiring a

defendant to litigate in plaintiff’s chosen forum is not

unconstitutionally burdensome.”). Because we hold that, for

purposes of this case, the Palestinian Authority lacks minimum

contacts with the United States as a whole, we express no view on

that issue.

19

n.4. Another purpose is to protect “the sovereign concerns of

other nations” whose courts might otherwise adjudicate the

claims. Id.; see also Daimler, 134 S. Ct. at 763 (warning that

courts should consider “risks to international comity” before

extending jurisdiction). Those considerations weigh at least as

heavily in the Fifth Amendment context. In federal and state

courts alike, defendants should face suit only under fair

circumstances. And just as Fourteenth Amendment

personal-jurisdiction standards in many cases govern state

courts’ power relative to other states’ courts (thus raising

federalism concerns), Fifth Amendment standards often

govern federal courts’ power relative to other nations’ courts,

bringing international-comity concerns to the fore. Because

strong justifications for personal-jurisdiction limits apply

equally in Fifth Amendment cases, we decline to devise new

standards for those cases that are less stringent than those under

the Fourteenth Amendment.

Applying consistent personal-jurisdiction standards under

the Fifth and Fourteenth Amendments is also easier to

administer. Jurisdictional rules should be “‘[s]imple,’” “easily

ascertainable,” and “‘predictab[le].’” Daimler, 134 S. Ct. at

760 (quoting Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)). It

is hardly clear what separate Fifth Amendment

personal-jurisdiction standards would consist of, and how

exactly they would differ from Fourteenth Amendment

standards. Without any compelling justification for developing

a new personal-jurisdiction doctrine, we decline to send courts

and litigants on that journey.

Finally, we disagree that applying the usual

personal-jurisdiction doctrine in Fifth Amendment cases will,

as the Livnats, Safras, and amici suggest, threaten

extraterritorial law enforcement. This case concerns personal

jurisdiction in civil cases alone; we do not address Congress’s

20

power to legislate extraterritorially or the personal jurisdiction

the federal courts have over criminal defendants. Moreover,

our holding merely adheres to the status quo of

personal-jurisdiction doctrine; we do not diminish any

law-enforcement tools that currently exist. In any event,

although congressional interests may be relevant to whether

personal jurisdiction comports with due-process standards, cf.

Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113

(1987) (directing courts to “consider . . . the interests of the

forum” as part of the inquiry into “the reasonableness of the

exercise of jurisdiction”), they cannot change the standards

themselves.

IV

Under the usual due-process standards, the appellants fail

to establish personal jurisdiction over the Palestinian Authority

in these cases. There are two types of personal jurisdiction,

either of which can suffice. The first, general jurisdiction,

“permits a court to assert jurisdiction over a defendant based on

a forum connection unrelated to the underlying suit.” Walden

v. Fiore, 134 S. Ct. 1115, 1121 n.6 (2014). Due process permits

general jurisdiction based on “only a limited set of affiliations

with a forum,” all analogous to an individual’s domicile.

Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014). For

example, the “equivalent place” to a domicile for a

corporation—“one in which the corporation is fairly regarded

as at home”—can be the place of incorporation or the principal

place of business. Id. (quoting Goodyear Dunlop Tires

Operations, S.A. v. Brown, 131 S. Ct. 2846, 2853-54 (2011)).

The appellants do not argue that the Palestinian Authority

may be “fairly regarded as at home” in the United States, and

for good reason. Its headquarters, officials, and primary

activities are all in the West Bank. The Palestinian Authority is

21

therefore not subject to general jurisdiction in the United

States.

The second type of personal jurisdiction, specific

jurisdiction, requires an “affiliation between the forum and the

underlying controversy.” Walden, 134 S. Ct. at 1121 n.6

(alteration omitted) (quoting Goodyear, 131 S. Ct. at 2851).

The appellants’ theory of specific jurisdiction is that the attack

at Joseph’s Tomb was “part of” the “policy and practice” of the

Palestinian Authority to “us[e] terrorism to influence United

States public opinion and policy,” of a piece with the

Palestinian Authority’s lobbying and fundraising activities

inside the United States. Appellants’ Br. 45.

We need not reach the legal sufficiency of this theory,

because the appellants failed to “make a prima facie showing

of the pertinent jurisdictional facts” to survive a motion to

dismiss for lack of personal jurisdiction. First Chicago Int’l v.

United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988).

“Conclusory statements” or a “bare allegation of conspiracy or

agency” do not satisfy this burden. Id. at 1378-79 (citation

omitted). When deciding personal jurisdiction without an

evidentiary hearing—as here—the “court must resolve factual

disputes in favor of the plaintiff,” Helmer v. Doletskaya, 393

F.3d 201, 209 (D.C. Cir. 2004), but it “need not accept

inferences drawn by plaintiffs if such inferences are

unsupported by the facts,” id. (quoting Kowal v. MCI

Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

In their complaints, the families allege that the attack was

“part and parcel of” the Palestinian Authority’s “general

practice of using terrorism to influence United States public

opinion and policy” and was “intended, through intimidation

and coercion, to influence the Israeli and United States

government’s policies.” Compl. at 5, 16, Livnat v. Palestinian

22

Auth., No. 1:14-cv-00668 (D.D.C. Apr. 21, 2014); Compl. at 3,

14, Safra v. Palestinian Auth., No. 1:14-cv-00669 (D.D.C.

Apr. 21, 2014). But those assertions are conclusory. They

merely state the plaintiffs’ theory of specific jurisdiction. The

Livnats and Safras presented a declaration from a professor

asserting that the Palestinian Authority encourages terrorism

against Jews and Israelis in order to influence U.S. policy in the

Palestinian Authority’s favor. Even if true, that evidence

establishes no link between that practice and the Joseph’s

Tomb attack. Indeed, the declaration does not even mention the

attack. The families do no more than infer that because some

attacks against Jews and Israelis have been aimed to influence

U.S. policy, the Joseph’s Tomb attack was, too. The record

before us does not support that inference. The appellants

therefore have not carried their burden to show specific

personal jurisdiction. 7

Finally, the appellants argue in the alternative that the

district court should have permitted jurisdictional discovery.

We review denials of jurisdictional discovery for abuse of

discretion. FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087,

1091 (D.C. Cir. 2008). A district court acts well within its

discretion to deny discovery when no “facts additional

discovery could produce . . . would affect [the] jurisdictional

analysis.” Goodman Holdings v. Rafidain Bank, 26 F.3d 1143,

1147 (D.C. Cir. 1994).

7

The appellants also argue that the district court should have

deferred its resolution of disputed issues of jurisdictional facts to the

merits stage of the litigation. Appellants’ Br. 54. We do not reach

that argument, however, because we conclude that their evidence,

standing alone, does not make a prima facie showing of their

personal-jurisdiction theory. They therefore failed to carry their

burden regardless of any factual dispute the Palestinian Authority

raises.

23

The district court did not abuse its discretion here, because

the additional discovery requested by the appellants would not

change our analysis. As to general jurisdiction, the appellants

do not even claim that they meet Daimler’s “at home” test. As

to specific jurisdiction, they failed to link this particular attack

to the alleged plan to influence opinion and policy in the

United States. But the additional discovery is not directed at

that defect. None of the additional facts that the families seek

relate to the attack at Joseph’s Tomb. Instead, their requested

discovery concerns only the Palestinian Authority’s general

political and financial activities in the United States, such as its

lobbying contracts and U.S. investments. See Appellants’ Br.

56-57. We do not see how any of that information would cure

the appellants’ failure to tie their jurisdictional theory to the

attack at Joseph’s Tomb with specific facts.

V

The Livnats and Safras failed to carry their burden of

demonstrating that personal jurisdiction over the Palestinian

Authority in this case would meet the requirements of the Fifth

Amendment’s Due Process Clause. We therefore affirm both

the district court’s denial of the Livnats’ and Safras’ motions

for jurisdictional discovery and its grant of the Palestinian

Authority’s motions to dismiss for lack of personal

jurisdiction.

So ordered.