Rinat Akhmetshin v. William Browder

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2020 Decided April 13, 2021

No. 19-7129

RINAT AKHMETSHIN,

APPELLANT

Vv.

WILLIAM BROWDER,

APPELLEE

On Petition for Panel Rehearing

Michael Tremonte argued the cause for appellant. With

him on the briefs was Alexandra G. Elenowitz-Hess.

Michael J. Gottlieb argued the cause and filed the brief for

appellee. With him on the briefs was Stephanie L. Miner.

Before: TATEL and KATSAS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

2

TABLE OF CONTENTS

OPINION ACCOMPANYING CERTIFICATION OF

QUESTIONS TO THE D.C. COURT OF APPEALS...........000e00e 3

ORIGINAL PANEL OPINION AND DISSENTING OPINION ........ 14

DEFENDANT-APPELLEE’S PETITION FOR PANEL

REHEARING OR REHEARING EN BANC........00ccceeccessseeeeeees 37

PLAINTIFF-APPELLANT’S RESPONSE TO THE PETITION

FOR PANEL REHEARING AND REHEARING EN BANC............. 61

28K ok oe Ok

EDWARDS, Senior Circuit Judge: In 2018, Appellant Rinat

Akhmetshin, a resident of the District of Columbia (“District”)

and a dual citizen of the United States and the Russian

Federation, filed a defamation action in the United States

District Court for the District of Columbia against Appellee

William Browder, a nonresident alien and citizen of the United

Kingdom. The District Court had subject-matter jurisdiction on

diversity-of-citizenship grounds. See 28 U.S.C. § 1332(a)(2).

Browder moved to dismiss the action on several grounds,

including for lack of personal jurisdiction pursuant to Federal

Rule of Civil Procedure 12(b)(2). Because Browder made his

allegedly defamatory statements while outside of the District

of Columbia, Akhmetshin sought to establish personal

jurisdiction over Browder under section 13-423(a)(4) of the

District’s long-arm jurisdiction statute. See D.C. CODE

§ 13-423(a)(4) (2001). According to Browder, however, the

“government contacts exception” resulted in the exclusion of

the vast majority of his conduct within the District from the

personal jurisdiction calculus. See Env’t Rsch. Int'l, Inc. v.

Lockwood Greene Eng’rs, Inc., 355 A.2d 808, 813 (D.C. 1976)

(en banc). Akhmetshin countered by arguing that that the

government contacts exception was inapplicable because

Browder is a nonresident alien who lacks sufficient ties to the

United States. The District Court agreed with Browder,

dismissing the case on personal jurisdiction grounds and

denying Akhmetshin’s request for jurisdictional discovery. See

Akhmetshin v. Browder, 407 F. Supp. 3d 11, 14 (D.D.C. 2019).

Akhmetshin appealed the District Court’s decision. We

vacated and remanded, holding that much of Browder’s

conduct within the District — including several activities that

may not have included direct contact with agents, members, or

4

instrumentalities of the federal government — should have been

included in the jurisdictional calculus. Akhmetshin v. Browder,

983 F.3d 542, 553-55 (D.C. Cir. 2020). In reaching that result,

we declined to pass upon Akhmetshin’s contention that the

government contacts exception has limited applicability to

nonresident aliens. See id. at 550-53. Instead, we vacated the

District Court’s order and remanded for jurisdictional

discovery, noting that — in our view — the District Court had

abused its discretion in applying an overbroad view of the

government contacts exception. Jd. at 557-58.

Judge Tatel dissented. He suggested that the better course

would be to certify two questions to the District of Columbia

Court of Appeals: First, what is the scope of the government

contacts exception when it is applied to efforts to influence

federal legislation and policy through the media? Second, may

a nonresident alien invoke the exception? See id. at 563 (Tatel,

J., dissenting).

Browder timely petitioned for panel rehearing and

rehearing en banc. After considering his arguments and

Akhmetshin’s response, the panel has now decided to certify

questions to the D.C. Court of Appeals regarding the

circumstances in which the government contacts exception

applies and whether nonresident aliens who are citizens only of

foreign countries may invoke the government contacts

exception.

Four questions are hereby certified for consideration by

the D.C. Court of Appeals. The certified questions appear at the

conclusion of part III of this opinion.

5

I. A Brief Summary of the Facts and Proceedings Leading

to Certification

The original decision issued by this court lays out in detail

the context in which this case arose, including Browder’s

historical connections to the District and the procedural

background of this litigation. See Akhmetshin, 983 F.3d at

547-50. We recount those details here only to the extent

necessary to provide useful background to the D.C. Court of

Appeals or to clarify any matters that might otherwise be

confusing.

Browder is a financier who lives and works in the United

Kingdom. Since 2009, he has traveled to the District on a

number of occasions. Akhmetshin alleged (without discovery)

that Browder has — while in the District — met with members of

Congress and provided testimony before governmental bodies,

appeared on television and podcasts, given interviews to

publications, participated in panel discussions at

nongovernmental organizations (“NGOs”) and think tanks,

promoted a book he authored, and attended personal events

such as social dinners and a funeral. Both parties agree that this

conduct has on a number of occasions related in some way to

Browder’s advocacy for measures holding human rights

abusers in Russia and elsewhere accountable for their

misdeeds. In particular, Browder expended extensive efforts in

promoting passage of the Russia and Moldova Jackson-Vanik

Repeal and Sergei Magnitsky Rule of Law Accountability Act

of 2012 (the “Magnitsky Act”). See Pub. L. No. 112-208, 126

Stat. 1496 (2012). It appears, however, that substantial portions

of Browder’s conduct in the District — particularly after 2012 —

did not include direct contacts with agents, members, or

instrumentalities of the Federal Government.

6

On July 12, 2018, Akhmetshin filed a complaint against

Browder in the District Court, alleging that Browder had

defamed him in several July 2017 tweets and statements.

Browder moved to dismiss the complaint for, among other

things, lack of personal jurisdiction, asserting that his conduct

within the District was not sufficient to satisfy any of the three

“plus factors” required by D.C. Code § 13-423(a)(4).

According to Browder, his contacts with the District were

largely related to lobbying and advocacy efforts and, therefore,

under the government contacts exception, could not be

considered in determining whether he was subject to personal

jurisdiction in the District. In response, Akhmetshin asserted

that the government contacts exception could not apply to

Browder because he is a nonresident alien who lacks sufficient

ties to the United States. Akhmetshin also argued that

Browder’s contacts with the District satisfied any of the three

plus factors in the long-arm statute. In the alternative,

Akhmetshin requested limited jurisdictional discovery to

further establish Browder’s contacts with the District.

The District Court granted Browder’s motion to dismiss

on personal jurisdiction grounds, denied Akhmetshin’s request

for discovery, and dismissed the case without prejudice. See

Akhmetshin v. Browder, 407 F. Supp. 3d 11, 14 (D.D.C. 2019).

In analyzing whether Browder’s contacts with the District

constituted a “persistent course of conduct” under the District’s

long-arm statute, the District Court held that the government

contacts exception applies to the conduct of nonresident aliens,

relying in large part on a footnote from an opinion of this court,

as well as prior District Court decisions. See id. at 23-24 (citing

Stabilisierungsfonds fur Wein v. Kaiser Stuhl Wine Distribs.

Pty. Ltd., 647 F.2d 200, 205 n.11 (D.C. Cir. 1981); LG Display

Co. v. Obayashi Seikou Co., 919 F. Supp. 2d 17, 26-27 (D.D.C.

2013)). The District Court then excluded from the

jurisdictional calculus virtually all of Browder’s conduct

7

within the District — regardless of whether it included direct

contacts with Federal Government agencies or officials — under

the exception. Jd. at 24-25, 24 n.15. In so doing, the court

expressed its view that the government contacts exception

operated to exclude from its inquiry all connections with the

District made by “a non-resident defendant who ‘concerns

[himself] with federal legislation, regulations, and policies’ in

an effort to ‘advance [the non-resident defendant’s federal]

policy agenda.” Jd. at 24 (alterations in original) (quoting

United Therapeutics Corp. v. Vanderbilt Univ., 278 F. Supp.

3d 407, 418 (D.D.C. 2017)).

Akhmetshin appealed and we reversed the District Court’s

decision to deny jurisdictional discovery. See Akhmetshin, 983

F.3d at 558. We explained that it was unclear to us whether,

based on D.C. Court of Appeals precedent, the government

contacts exception applies to nonresident aliens. See id. at

550-51. We concluded that, if we were forced to resolve that

issue in order to dispose of the case, we would likely need to

certify a question to the D.C. Court of Appeals. See id. at 553.

The panel majority thought that the nonresident alien issue

might become moot, however. See id. The majority concluded

that the District Court had applied an overly generous view of

the government contacts exception in light of District law as

set forth by the D.C. Court of Appeals in its seminal decision

in Environmental Research International, Inc. v. Lockwood

Greene Engineers, Inc., 355 A.2d 808 (D.C. 1976) (en banc).

See Akhmetshin, 983 F.3d at 553-55 (citing 355 A.2d at 813).

Since the District Court had employed that overly generous

view in denying jurisdictional discovery, this court held that

such denial had been an abuse of discretion. See id. at 557-58.

We also concluded that Akhmetshin had shown enough to

obtain jurisdictional discovery upon remand. See id. at 558.

8

Judge Tatel dissented. In his view, Environmental

Research International did not settle the question of whether

the government contacts exception extends beyond direct

contacts with federal government agencies and officials. See id.

at 559-61 (Tatel, J., dissenting). Instead, he believed that “no

‘controlling precedent’ resolve[d] the question of whether the

government contacts exception extends” as broadly as the

District Court held and as Browder had argued before us. /d. at

560. Like the majority, he believed that there was genuine

uncertainty “as to whether a foreign citizen may invoke the

government contacts exception.” Jd. at 562. Believing both

issues to be of “extreme public importance,” id. at 558 (citation

and quotation marks omitted), he urged the court to certify

questions to the D.C. Court of Appeals, id. at 563.

After we issued our decision, Browder filed a petition for

panel rehearing and rehearing en banc. Some of Browder’s

legal arguments now give us pause. First, he contends that the

“purpose” of a defendant’s entry into the District is the key to

determining whether the government contacts exception

applies to the defendant’s activities once here. See

Def.-Appellee’s Pet. For Panel Reh’g or Reh’g En Banc

(“Reh’g Pet.”) at 10-12. And when a defendant enters the

District with the purpose of contacting the Federal

Government, other conduct during the same trip to the District

should be excluded from the jurisdictional calculus, even if it

does not itself involve direct contacts with the Government. See

id. Relatedly, Browder argues that this “purpose” inquiry is

dictated by our case law predating Environmental Research

International, upon which the D.C. Court of Appeals has

looked favorably. See id. at 14-17 (citing Env’t Rsch. Int'l, 355

A.2d at 813 n.9)).

In light of Browder’s arguments in his petition for

rehearing, and Akhmetshin’s strong responses to those

9

arguments, we have concluded that the matters in dispute are

best resolved by the D.C. Court of Appeals. See McKesson v.

Doe, 141 S. Ct. 48, 51 (2020) (per curiam) (holding that

certification is appropriate when a “dispute presents novel

issues of state law peculiarly calling for the exercise of

judgment by the state courts” and when “certification would

ensure that any conflict . . . between state law and the First

Amendment is not purely hypothetical”).

II. The Uncertain Scope of the Government Contacts

Exception

In Environmental Research International, the D.C. Court

of Appeals, sitting en banc, explained that the government

contacts exception is grounded “in the unique character of the

District as the seat of national government and in the

correlative need for unfettered access to federal departments

and agencies for the entire national citizenry.” 355 A.2d at 813.

The court then added that “[t]o permit... courts to assert

personal jurisdiction over nonresidents whose sole contact with

the District consists of dealing with a federal instrumentality

not only would pose a threat to free public participation in

government, but also would threaten to convert the District of

Columbia into a national judicial forum.” Jd. (citation omitted).

Thus, “entry into the District of Columbia by nonresidents for

the purpose of contacting federal governmental agencies is not

a basis for the assertion of in personam jurisdiction.” Jd.

(citation omitted).

“Environmental Research International indicates that the

Court of Appeals viewed the government contacts exception as

applying only to members of the ‘national citizenry.”

Akhmetshin, 983 F.3d at 550 (emphasis added) (quoting 355

A.2d at 813). “This suggests that the exception does not apply

to nonresident aliens.” Jd. And other phrases indicate that the

10

exception applies only to direct contacts with the Federal

Government and its agents, members, or instrumentalities. See

Env't Rsch. Int'l, 355 A.2d at 813 (referring to “nonresidents

whose sole contact... consists of dealing with a federal

instrumentality” (emphases added)); id. (grounding the

exception in the “need for... access to federal departments

and agencies” (emphasis added)). However, the opinion might

be read to say, as Browder suggests, that the dispositive

question is the “purpose” for which “nonresidents” have

entered the District. See id. On this view of the law, if the

nonresident’s purpose in entering the District is to have direct

contact with the federal government, other activities

undertaken while the defendant is here arguably might be

excludable from the jurisdictional calculus.

Adding to the uncertainty in this area is that several

decisions of the D.C. Court of Appeals since 1976 “have left

the scope of the government contacts exception ‘unsettled.’”

Akhmetshin, 983 F.3d at 550 (first quoting Companhia

Brasileira Carbureto de Calicio v. Applied Indus. Materials

Corp., 640 F.3d 369, 371 (D.C. Cir. 2011)); and then citing

Naartex Consulting Corp. v. Watt, 722 F.2d 779, 786-87 (D.C.

Cir. 1983) (addressing possible tension between Court of

Appeals decisions on the government contacts exception)). In

1978, a panel of the D.C. Court of Appeals held “that the First

Amendment provides the only principled basis” for the

government contacts exception, with the exception’s “premise”

having shifted “solely to the First Amendment.” Rose v. Silver,

394 A.2d 1368, 1374 (D.C. 1978). “And in 1990, in a decision

responding to a certified question from this court, the Court of

Appeals framed an inquiry regarding the government contacts

exception as ‘whether the defendants can assert a First

Amendment interest... , thereby permitting invocation of the

“government contacts” principle.’” Akhmetshin, 983 F.3d at

551 (alteration in original) (quoting Lex Tex Ltd., Inc. v.

11

Skillman, S79 A.2d 244, 249 (D.C. 1990)). If the exception

applies only to a defendant who possesses cognizable First

Amendment rights, it is not clear whether it applies to Browder.

See United States v. Verdugo-Urquidez, 494 U.S. 259, 265

(1990) (noting that “textual exegesis... suggests that ‘the

people’ protected by the .. . First and Second Amendments...

refers to a class of persons who are part of a national

community or who have otherwise developed sufficient

connection with this country to be considered part of that

community”). Nor have we found a decision in which the D.C.

Court of Appeals has applied the exception to a nonresident

alien.

In sum, we have two broad and difficult issues before us:

whether nonresident aliens may invoke the government

contacts exception, and the scope of conduct to which it

applies. Considering the arguments raised in the petition for

rehearing, we are now convinced that District law in both

spheres is “genuinely uncertain.” Companhia Brasileira, 640

F.3d at 373 (quoting Sturdza v. United Arab Emirates, 281 F.3d

1287, 1303 (D.C. Cir. 2002)).

Ill. The Certified Questions

Under D.C. Code § 11—723(a), the D.C. Court of Appeals

may answer certified questions from this court if they involve

“questions of law of the District of Columbia which may be

determinative of [a] cause pending... as to which it

appears . . . there is no controlling precedent in the decisions of

the District of Columbia Court of Appeals.” We have therefore

certified questions to the Court of Appeals when it appears that

“District of Columbia law is genuinely uncertain’ and the

question[s] [are] of ‘extreme public importance.’” Companhia

Brasileira, 640 F.3d at 373 (quoting Sturdza, 281 F.3d at

1303).

12

For the reasons discussed above, we have no doubt that the

legal questions at issue here admit of no easy answers. The law

is therefore genuinely uncertain. We also believe that the

questions posed by this case concern matters of great public

importance. First, the nonresident alien issue “affects core First

Amendment values because it is far from clear whether the

right to petition the government extends to Browder as a

noncitizen.” Akhmetshin, 983 F.3d at 562 (Tatel, J., dissenting)

(citations omitted). And while the record is silent as to the

number of nonresident aliens who enter the District each year

with the purpose of affecting federal policy, it seems likely that

the number is not insignificant. Second, “lobbying” is “one of

this city’s major businesses,” id. at 563, and the jurisdictional

effect of advocacy efforts that do not involve direct contacts

with the federal government may impact the degree to which

visitors are willing to undertake such efforts moving forward.

Phrased differently, nonresidents may elect to refrain from

media, promotional, and academic activities within the District

to advance their federal policy agendas if such activities make

it more likely that they will be subjected to personal jurisdiction

here.

Rather than “[s]peculate[e]” on these difficult and “novel

issues of [District] law,” McKesson, 141 S. Ct. at 51 (citation

and quotation marks omitted), we certify the following

questions to the District of Columbia Court of Appeals:

1. May nonresident aliens who are citizens only of

foreign countries invoke the government contacts

exception?

2. Ifthe first question is answered in the affirmative,

must those nonresident aliens possess cognizable

rights pursuant to the First Amendment generally,

13

or any specific clause thereunder, in order to

invoke the exception?

3. Does the government contacts exception extend to

efforts to influence federal policy other than direct

contacts with agents, members, or

instrumentalities of the federal government?

4. Ifthe third question is answered in the affirmative,

what standard governs in determining whether

activities not involving direct contacts with the

federal government are covered under the

exception?

If the Court of Appeals elects to take up these questions, it

may, of course, “exercise [its] prerogative to frame the basic

issues as [it] see[s] fit for an informed decision.” Delahanty v.

Hinckley, 564 A.2d 758, 760 (D.C. 1989) (citation omitted).

To facilitate review by the D.C. Court of Appeals, we have

appended the following materials to this opinion: (1) our

original panel opinion and dissenting opinion; (2) Browder’s

petition for panel rehearing or rehearing en banc; (3)

Akhmetshin’s response to Browder’s rehearing petition; and

(4) excerpts from the Joint Appendix submitted to this court

related to Browder’s conduct within the District of Columbia.

ORIGINAL PANEL OPINION

AND DISSENTING OPINION

14

542 983 FEDERAL REPORTER, 3d SERIES

Fed. Reg. at 65,446, 65,560-62, 65,601; see

also National Cable & Telecommunica-

tions Ass’n, 555 F.3d at 1002 (finding that

the agency complied with the “no broader

than necessary” prong under intermediate

scrutiny because it “carefully considered

the differences between [ ] two regulatory

approaches, and the evidence supports the

[agency]’s decision”).

[9] Finally, the Association argues that

we should subject the rule to strict scruti-

ny. In support, it relies on Barr v. Ameri-

can <Ass’n of Political Consultants

(AAPC), — U.S. ——, 140 8. Ct. 2835,

207 L.Ed.2d 784 (2020), in which the Court

sustained a First. Amendment challenge to

a statute barring political speakers from

making robocalls while allowing the gov-

ernment to use them for debt collection.

But unlike the rule at issue here, that law

was “directed at certain content,” “aimed

at particular speakers,” and restricted po-

litical speech. Id. at 2347 Gnternal quota-

tion marks omitted). Significantly for our

purposes, moreover, the AAPC plurality

made clear that the decision not only “fits

comfortably within existing First Amend-

ment precedent,” but also is “not intended

to expand existing First Amendment doc-

trine or to otherwise affect traditional or

ordinary economic regulation of commer-

cial activity.” Id. Requiring hospitals to

disclose prices before rendering services

undoubtedly qualifies as “traditional or or-

dinary economic regulation of commercial

activity.” Id.

V.

For the foregoing reasons, we affirm the

district court’s grant of summary judg-

ment to the Secretary.

So ordered.

© & KEY NUMBER SYSTEM

sams

Rinat AKHMETSHIN, Appellant

Vv.

William BROWDER, Appellee

No. 19-7129

United States Court of Appeals,

District of Columbia Circuit.

Argued September 22, 2020

Decided December 29, 2020

Background: District of Columbia resi-

dent, who was dual citizen of United States

and Russian Federation, filed defamation

action against lobbyist, who was nonresi-

dent of District and citizen of United King-

dom, claiming that lobbyist falsely stated

that dual citizen was Russian spy. The

United States District Court for the Dis-

trict of Columbia, Emmet G. Sullivan, J.,

407 F.Supp.3d 11, granted lobbyist’s mo-

tion to dismiss for lack of personal juris-

diction, and denied dual citizen’s motion

for jurisdictional discovery.

Holdings: The Court of Appeals, Ed-

wards, Senior Circuit Judge, held that:

(1) lobbyist’s contacts with District, other

than contacts with federal government,

could be considered in jurisdictional

analysis;

(2) fiduciary shield doctrine did not apply

to lobbyist’s contacts related to his

book;

(3) lobbyist’s contacts did not satisfy two

“plus factors” for long-arm jurisdiction;

and

(4) record was incomplete as to third “plus

factor” for long-arm jurisdiction; and

(5) precisely focused jurisdictional discov-

ery was warranted.

Vacated and remanded.

15

AKHMETSHIN v. BROWDER 543

Cte as 983 F.3d 542 (D.C. Cir. 2020)

Tatel, Circuit Judge, filed dissenting opin-

ion.

1. Courts €13.3(3, 11)

Under District of Columbia’s long-arm

jurisdiction statute, any party over whom

personal jurisdiction is sought must have

satisfied one of three “plus factors” within

the District: (1) regularly doing or solicit-

ing business, (2) engaging in any other

persistent course of conduct, or (8) deriv-

ing substantial revenue from goods used or

consumed or services rendered. D.C.

Code § 18-423(a)(4).

2. Courts ¢713.3(4)

Under the government contacts ex-

ception to the District of Columbia’s long-

arm jurisdiction statute, entries into the

District by nonresidents for the purpose of

contacting federal governmental agencies

or instrumentalities do not factor into the

jurisdictional calculus. D.C. Code § 13-

423(a)(4).

3. Constitutional Law 3964

Federal Courts ©2721, 3025(4)

A personal jurisdiction analysis re-

quires that a court determine whether (1)

jurisdiction over a party is proper under

the applicable local long-arm statute and

(2) whether it accords with the demands of

due process. U.S. Const. Amend. 14.

4. Federal Courts €3581(4)

Court of Appeals reviews dismissal of

an action for lack of personal jurisdiction

de novo.

5. Federal Courts €2791

The plaintiff bears the burden of es-

tablishing that the court has personal ju-

risdiction over the defendant.

6. Federal Courts 3591

Denial of jurisdictional discovery is

reviewed for abuse of discretion.

7. Courts 13.3(4)

The government contacts exception to

the District of Columbia’s long-arm juris-

diction statute applies when nonresidents’

sole contact with the District consists of

dealing with a federal instrumentality.

D.C. Code § 13-423(a)(4).

8. Courts ¢°13.3(4)

The government contacts exception to

the District of Columbia’s long-arm juris-

diction statute finds its source in the need

for unfettered access to federal depart-

ments and agencies. D.C. Code § 13-

423(a)(4).

9. Courts €13.3(4)

Entry into the District by nonresi-

dents for the purpose of contacting federal

governmental agencies is the key to the

analysis as to whether the government

contacts exception to the District of Co-

lumbia’s long-arm jurisdiction statute ap-

plies. D.C. Code § 13-428(a)(4).

10. Courts ¢13.3(4)

Under the government contacts ex-

ception to the District of Columbia’s long-

arm jurisdiction statute, only direct con-

tacts with members, agents, or instrumen-

talities of the federal government may be

excluded from the jurisdictional calculus.

D.C. Code § 13-423(a)(4).

11. Federal Courts ©2744

Nonresident lobbyist’s contacts with

District of Columbia, that were not direct

contacts with federal government, could be

included in jurisdictional analysis to deter-

mine whether he had sufficient contacts

with District to support exercise of person-

al jurisdiction in defamation suit against

him for allegedly falsely stating that dual

citizen of United States and Russian Fed-

eration was Russian spy, under govern-

ment exception to District’s long-arm stat-

ute, including his attendance at reception

16

544

and funeral, book promotional appear-

ances, discussions and speeches at think

tanks, interviews in print and audio-visual

media, and hiring of law firm; exception

only allowed direct contacts with members,

agents, or instrumentalities of federal gov-

ernment to be excluded from jurisdictional

ealeulus. D.C. Code § 18-423(a)(4).

12. Courts €-13.6(5)

Under the “fiduciary shield doctrine,”

a defendant employee’s acts and contacts

carried out solely in a corporate capacity

within a forum are removed from the juris-

dictional analysis for the District of Colum-

bia’s long-arm jurisdiction statute. D.C.

Code § 18-423(a)(4).

See publication Words and Phrases

for other judicial constructions and

definitions.

13. Courts €13.6(5)

There is no absolute fiduciary shield

doctrine or a per se rule that an employ-

ee’s acts in his official capacity may never

give rise to personal jurisdiction over him

under the District of Columbia’s long-arm

jurisdiction statute. D.C. Code § 13-

423(a)(4).

14. Federal Courts €=2744

Fiduciary shield doctrine did not ap-

ply to categorically exclude from jurisdic-

tional calculus nonresident lobbyist’s con-

tacts with District of Columbia related to

sales and promotional events for his book,

under District of Columbia’s long-arm ju-

risdiction statute, in defamation suit

against lobbyist who allegedly falsely stat-

ed that District resident was Russian spy,

even though lobbyist was founder and

chief executive officer of copyright owner

for book, where lobbyist was at least part-

ly acting in his individual capacity as au-

thor of book when promoting book in Dis-

trict. D.C. Code § 18-423(a)(4).

983 FEDERAL REPORTER, 3d SERIES

15. Federal Courts ¢2744

Nonresident lobbyist’s direct contacts

with District of Columbia related to sales

and promotional events for his book did

not satisfy “plus factors” of regularly do-

ing or soliciting business in District or

deriving substantial revenue from goods

used or consumed or services rendered in

District, as would be required for exercise

of personal jurisdiction, under District’s

long-arm statute, in defamation suit

against lobbyist who allegedly falsely stat-

ed District resident was Russian spy,

where publisher rather than lobbyist made

sales decisions for book, lobbyist did not

directly receive revenue from book sales,

revenue from sales of book was de minim-

is, and lobbyist only made three book pro-

motion appearances in District over span

of months several years ago. D.C. Code

§ 13-423(a)(4).

16. Courts €13.3(3)

The use of “regularly” to describe the

type of contact contemplated indicates that

the minimal contacts with the District of

Columbia that are required for exercise of

long-arm jurisdiction should at least be

continuing in character. D.C. Code § 13-

423(a)(4).

See publication Words and Phrases

for other judicial constructions and

definitions.

17. Courts €°13.3(3)

The “plus factor” of persistent course

of conduct in the District of Columbia, as

required for exercise of personal jurisdic-

tion over a nonresident, under District’s

long-arm jurisdiction statute, is not a par-

ticularly high bar, and it denotes connec-

tions considerably less substantial than

those required to establish general, all

purpose jurisdiction on the basis of doing

business in the forum. D.C. Code § 13-

423(a)(4).

AKHMETSHIN v. BROWDER 545

Cte as 983 F.3d 542 (D.C. Cir. 2020)

18. Courts ¢13.3(3)

The “plus factor” of persistent course

of conduct in the District of Columbia, as

required for exercise of personal jurisdic-

tion over a nonresident, under District’s

long-arm jurisdiction statute, serves to ex-

clude cases in which the in-forum impact is

an isolated event and the defendant other-

wise has no, or scant, affiliations with the

forum. D.C. Code § 18-423(a)(4).

19. Federal Courts @#2744

Trial court’s record was incomplete as

to whether nonresident lobbyist’s contacts

with District of Columbia satisfied “plus

factor” of persistent course of conduct in

District, as would be required for exercise

of personal jurisdiction over lobbyist, un-

der District’s long-arm statute, in defama-

tion suit against lobbyist who allegedly

falsely stated District resident was Rus-

sian spy. D.C. Code § 13-423(a)(4).

20. Federal Civil Procedure ¢1267.1

Trial courts generally have broad dis-

cretion in ordering or denying discovery.

21. Federal Courts ¢=3565

A trial court by definition abuses its

discretion when it makes an error of law.

22. Federal Courts ¢=3565

The abuse-of-discretion standard in-

cludes appellate review to determine that

the trial court’s discretion was not guided

by erroneous legal conclusions.

23. Federal Civil Procedure @71275.5

District of Columbia resident would

be permitted to pursue precisely focused

jurisdictional discovery aimed at address-

ing whether nonresident lobbyist engaged

in persistent course of conduct within Dis-

trict, as would be required for exercise of

personal jurisdiction, under District’s long-

arm statute, in defamation suit claiming

that lobbyist falsely stated that resident

was Russian spy, since lobbyist had signifi-

cant contacts with District even excluding

from jurisdictional analysis his direct con-

tacts with federal government. D.C. Code

§ 13-423(a)(4).

Appeal from the United States District

Court for the District of Columbia (No.

1:18-ev-01638)

Michael Tremonte argued the cause for

appellant. With him on the briefs was Al-

exandra Elenowitz-Hess.

Michael J. Gottlieb, Washington, argued

the cause and filed the brief for appellee.

With him on the brief was Stephanie L.

Miner, Syracuse, NY.

Before: TATEL and KATSAS, Circuit

Judges, and EDWARDS, Senior Circuit

Judge.

Dissenting opinion filed by Circuit

Judge TATEL.

EDWARDS, Senior Circuit Judge:

On July 12, 2018, Appellant Rinat

Akhmetshin, a resident of the District of

Columbia (“District”) and a dual citizen of

the United States and the Russian Federa-

tion, filed a defamation action in the Dis-

trict Court against Appellee William Brow-

der, a nonresident alien and citizen of the

United Kingdom. See J.A. 7-20. The Dis-

triet Court had subject-matter jurisdiction

on diversity-of-citizenship grounds. See 28

U.S.C. § 13832(a)(2).

Akhmetshin’s complaint cites several in-

cidents to support his claim of defamation:

(1) two tweets posted by Browder in which

he identified Akhmetshin as a “Russian

GRU officer” and a “Russian intelligence

asset”; (2) a statement published in Busi-

ness Insider in which Browder described

Akhmetshin as “a member of Putin’s se-

cret police”; and (8) a television interview

during which Browder described

18

546

Akhmetshin as, “by all accounts, some kind

of shady former Soviet spy, current spy

operator in Washington.” Browder moved

to dismiss the action on several grounds,

including under Federal Rule of Civil Pro-

cedure 12(b)(2) for lack of personal juris-

diction. See J.A. 59. Because Browder

made his allegedly defamatory statements

outside of the District of Columbia,

Akhmetshin sought to establish personal

jurisdiction over Browder under section

13-423(a)(4) of the District’s long-arm ju-

risdiction statute. D.C. CODE § 13-

423(a)(4) (2001).

[1,2] Section 13-423(a)(4) authorizes

the “exercise [of] personal jurisdiction over

a person” who has “caus[ed] tortious inju-

ry in the District of Columbia by an act or

omission outside the District of Columbia.”

Any such party over whom personal juris-

diction is sought must have satisfied one of

three “plus factors” within the District.

See Crane v. Carr, 814 F.2d 758, 763 (D.C.

Cir. 1987). These factors are “[1] regularly

dofing] or solicit[ing] business, [2] en-

gag[ing] in any other persistent course of

conduct, or [8] deriv[ing] substantial reve-

nue from goods used or consumed, or ser-

vices rendered.” D.C, Cope § 13-423(a)(4).

However, “entr[ies] into the District ...

by nonresidents for the purpose of contact-

ing federal governmental agencies [or in-

strumentalities]” do not factor into the ju-

risdictional calculus. Env’t Rsch. Int'l, Inc.

v. Lockwood Greene Eng’rs, Inc., 355 A.2d

808, 813 (D.C. 1976) (en banc) (explaining

the “government contacts exception”).

The record in the case indicates that,

since 2009, Browder has traveled to the

District of Columbia on a number of occa-

sions. While on these trips, he has, among

other things, met with members of Con-

gress and provided testimony before gov-

ernmental bodies, appeared on television

and podcasts, given interviews to publica-

tions, participated in panel discussions at

983 FEDERAL REPORTER, 3d SERIES

nongovernmental organizations (“NGOs”)

and think tanks, and attended personal

events such as social dinners and a funeral.

See, eg., JA. 197-98, 202, 208, 204, 206,

214, 235-36, 248, 249, 251, 333, 336. It is

undisputed that Browder’s visits to the

District often have been related to his

advocacy for measures holding human

rights abusers in Russia accountable for

their misdeeds. See J.A. 39-40, 149. Prior

to 2012, Browder lobbied Congress for

passage of the Russia and Moldova Jack-

son-Vanik Repeal and Sergei Magnitsky

Rule of Law Accountability Act of 2012

(the “Magnitsky Act”). See Pub. L. No.

112-208, 126 Stat. 1496 (2012). After the

passage of the Magnitsky Act in 2012,

Browder’s trips to the District. continued,

both to promote the Act and to participate

in a variety of professional and social

events. See, e.g., J.A. 239-40,

The District Court granted Browder’s

motion to dismiss for lack of personal ju-

risdiction. Akhmetshin v. Browder, 407 F.

Supp. 3d 11, 14 (D.D.C. 2019). The court

agreed with Browder that virtually all of

his contacts with the District were subject

to the government contacts exception; the

court additionally found that Browder’s re-

maining contacts with the District, based

on the then-existing record, were not suffi-

cient for jurisdiction under the District’s

long-arm statute. Id. at 24-25. The District

Court also denied jurisdictional discovery,

as it believed that any additional contacts

with the District that Akhmetshin might

uncover would likely be excluded under

the government contacts exception. Id. at

28.

Based on the current record, we cannot

determine whether Browder’s non-govern-

ment contacts with the District satisfy any

of the three “plus factors” required under

the long-arm statute. The District Court

relied on an overly broad construction of

the government contacts exception in

AKHMETSHIN v. BROWDER 547

Cite as 983 F.3d 542 (D.C. Cir. 2020)

granting judgment for Browder and deny-

ing jurisdictional discovery. Therefore, we

have no sound basis upon which to credit

the District Court’s judgment. According-

ly, we are constrained to vacate the judg-

ment under review and remand the case

for jurisdictional discovery.

I. BACKGROUND

A. Browder’s Background and Con-

tacts with the District of Colum-

bia

Browder is a financier who lives and

works in the United Kingdom. See J.A. 34.

In 1996, he founded Hermitage Capital

Management (“Hermitage”), a hedge fund

specializing in former Soviet markets. See

J.A. 8, 10, 217. In 2008, Sergei Magnitsky,

one of Hermitage’s lawyers, allegedly dis-

covered that Russian government officials

and members of organized crime had used

Hermitage portfolio companies to perpe-

trate a $230 million tax fraud scheme. See

J.A. 39-40, 108. Magnitsky was then ar-

rested by Russian authorities and, in No-

vember 2009, died in a Russian prison. See

J.A. 39-40, 187.

After being notified of Magnitsky’s

death, Browder sought accountability for

those he believed responsible. See, ¢.g.,

J.A. 196-98. In the United States, his ef-

forts took the form of lobbying and advo-

cating for the Magnitsky Act, which au-

thorizes the President of the United States

to impose sanctions against individuals

who were responsible for Magnitsky’s

death, who have benefitted financially from

his death, or who were involved in the

underlying tax fraud scheme. See Magnit-

sky Act $§ 404, 406. In June 2009, Brow-

der testified before the Commission on

Security and Cooperation in Europe (the

“Helsinki Commission”) — an independent

commission of the federal government —

regarding the circumstances of Magnit-

sky’s detention. See J.A. 16. From 2010

through 2012, Browder met with members

of Congress and their staffs, also testifying

before various Congressional bodies. See

J.A. 10, 16, 197-98. Those efforts culminat-

ed in the 2012 enactment of the Magnitsky

Act. See J.A. 10.

Since then, according to Akhmetshin,

Browder has visited the District a number

of times. Those trips have included testi-

mony before a Congressional committee on

one occasion in 2015, as well as testimony

before the Helsinki Commission and a sep-

arate Congressional committees on two

separate trips in 2017. See J.A. 16-17. The

trips have also included attendance at an

April 2018 reception, see J.A. 184, 325-26,

sitting for an interview published in BBC

News magazine in December 2013, see J.A.

181, 211-38, attendance at a book release

event in January 2014, see J.A. 184, 327-34,

participation in an April 2015 panel discus-

sion at the National Endowment for De-

mocracy, see J.A. 181, 234-37, sitting for an

interview published in June 2016 in The

American Interest, see J.A. 181-82, 238-47,

sitting for three interviews on two sepa-

rate dates in July 2017 with cable news

outlets and a podcast, see J.A. 182, 248-51,

sitting for interviews on five separate

dates in April, July, August, and Novem-

ber 2018 with television and print news

outlets, see J.A. 182-838, 252-54, 256-62, and

attendance at a funeral in the District in

September 2018, see J.A. 184, 335-86.

Browder also hired a law firm in the Dis-

trict in 2016 in connection with efforts to

defend himself and the Magnitsky Act

from detractors. See J.A. 264-71.

In 2015, Browder authored a book, Red

Notice, describing his personal back-

ground, the circumstances surrounding

Magnitsky’s death, the passage of the

Magnitsky Act, and subsequent develop-

ments. See J.A. 17, 413-15. Akhmetshin’s

defamation complaint refers to Red Notice

as a “best-seller.” Compl. 1 68, Joint Ap-

20

548

pendix (“J.A.”) 18. Hermitage entities own

and license the copyright to Red Notice,

and they engaged Simon & Schuster, Inc.

(“Simon & Schuster”) to publish the book,

which is sold in the District. See J.A. 372-

73. According to one of Hermitage’s di-

rectors, Browder “does not personally own

any property rights in the book” and “has

personally earned no revenues as a result

of the sales of Red Notice.” Decl. of Ivan

Cherkasov 11 3, 6, J.A. 372-73. Nonethe-

less, in 2015, Browder made at least three

appearances in the District at events pro-

moting Red Notice. See J.A. 153, 208, 204.

B. The Instant Case

Over the last five years, Browder and

Akhmetshin have found themselves in-

creasingly at odds. See J.A. 11-14. These

tensions generally relate to Akhmetshin’s

public advocacy contradicting Browder’s

version of the events that resulted in Mag-

nitsky’s death, including accusations that

Browder and Magnitsky - not Russian

government officials — perpetrated the un-

derlying tax fraud. See J.A. 12-13.

Akhmetshin’s efforts on this front have

ineluded lobbying for the removal of Mag-

nitsky’s name from the Magnitsky Act. See

J.A. 12.

On July 14, 2017, it was widely reported

that Akhmetshin had attended a June 9,

2016 meeting with, among others, Donald

Trump, Jr. in New York City, at which the

Magnitsky Act had been discussed. See

J.A. 14, 35, 90, 108. Shortly after the news

broke, Browder posted two tweets identi-

fying Akhmetshin as a “Russian GRU offi-

cer,” Decl. of Melissa Shube, Ex. A, J.A.

88, and a “Russian intelligence asset,”

Decl. of Melissa Shube, Ex. B, J.A. 95.

Each tweet linked to an online article re-

porting on the June 9, 2016 meeting and

containing information on Akhmetshin’s

background. See J.A. 88-93, 95-105. An ar-

ticle published in Business Insider, also on

983 FEDERAL REPORTER, 3d SERIES

July 14, 2017, included the following quote

from Browder: “So in my opinion you had

a member of Putin’s secret police directly

meeting with the son of the future next

president of the United States asking to

change U[.JS[.] sanctions policy crucial to

Putin.” Decl. of Melissa Shube, Ex. C, J.A.

109. Four days later, during a television

appearance, Browder described Akhmetsh-

in as, “by all accounts, some kind of shady

former Soviet spy, current spy operator in

Washington.” Compl. 151, J.A. 15.

On July 12, 2018, Akhmetshin filed a

complaint against Browder in the District

Court, alleging that Browder’s two tweets,

his statement to Business Insider, and his

statement on television were defamatory.

See J.A. 7-20. On November 30, 2018,

Browder filed a Motion to Dismiss the

Complaint under Federal Rule of Civil

Procedure 12(b)(2) for lack of personal ju-

risdiction and Federal Rule of Civil Proce-

dure 12(b)(6) for failure to state a claim.

See J.A. 25. Regarding personal jurisdic-

tion, Browder asserted that his conduct

within the District was not sufficient to

satisfy any of the “plus factors” required

by D.C. Code § 13-423(a)(4). See J.A. 50-

58. According to Browder, his contacts

with the District were almost entirely re-

lated to lobbying and advocacy efforts and,

therefore, under the government contacts

exception, these contacts could not be con-

sidered in the calculus regarding whether

he was subject to personal jurisdiction in

the District of Columbia. See J.A. 50, 53-

57.

Akhmetshin filed an Opposition to the

Motion to Dismiss. See J.A. 127-79. On the

personal jurisdiction issue, he argued that

the government contacts exception had no

play in the personal jurisdiction calculus

because Browder is a nonresident alien

who lacks sufficient ties to the United

States. See J.A. 149-52. He also argued

that Browder’s contacts with the District

AKHMETSHIN v. BROWDER 549

Cte as 983 F.3d 542 (D.C. Cir. 2020)

satisfied all three plus factors in the Dis-

trict’s long-arm statute. See J.A. 153-56. In

the alternative, Akhmetshin requested lim-

ited jurisdictional discovery to further es-

tablish Browder’s contacts with the Dis-

trict. See J.A. 179.

On September 16, 2019, the District

Court granted Browder’s Motion to Dis-

miss for lack of personal jurisdiction, de-

nied Akhmetshin’s request for discovery,

and dismissed the case without prejudice.

Akhmeishin, 407 F. Supp. 3d at 14. The

District Court applied the terms of the

District’s long-arm statute under D.C.

Code § 18-423(a)(4) and determined that it

could not exercise personal jurisdiction

over Browder based on revenues coming

from sales of Red Notice under the third

plus factor because all revenues went to

Simon & Schuster and Hermitage corpo-

rate entities, not Browder. Jd. at 21-22.

The District Court also found that

“Akhmetshin’s allegations fail to show that

Mr. Browder conducted or solicited busi-

ness in the District” sufficient to satisfy

the first factor under the long-arm statute.

Id. at 22.

The District Court then analyzed wheth-

er Browder’s contacts with the District

constituted a “persistent course of con-

duct” — the second plus factor under the

District’s long-arm statute. Id. at 22-25;

see D.C. Cope § 18-423(a)(4). First, the

District Court rejected Akhmetshin’s argu-

ment that the government contacts excep-

tion does not apply to nonresident aliens.

Akhmetshin, 407 F. Supp. 3d at 23-24,

Second, the District. Court excluded all of

Browder’s direct contacts with governmen-

tal actors from its jurisdictional calculus.

Id. at 24. Third, the District Court also

excluded from the jurisdictional calculus

virtually all of Browder’s other contacts

with the District - including his media

interviews and book promotion events —

under the exception. Jd. at 24-25, 24 n.15.

In so doing, the court expressed its view

that the government contacts exception op-

erated to exclude from the calculus all

conduct within the District by “a non-resi-

dent defendant who ‘concerns [himself]

with federal legislation, regulations, and

policies’ in an effort to ‘advance [the non-

resident defendant’s federal] policy agen-

da.’” Id. at 24 (alterations in original)

(quoting United Therapeutics Corp. v.

Vanderbilt Univ., 278 F. Supp. 3d 407, 418

(D.D.C. 2017).

Next, the District Court addressed

Akhmetshin’s claims that Browder “ha[d]

traveled to the District on several occa-

sions for certain engagements (i.e. dinner,

reception, meetings, private event, and fu-

neral) between 2009 and 2018.” Id. at 25.

Akhmetshin had also noted that Browder

“retained a law firm with an office in the

District, ... sent two demand letters to

NBC Universal regarding a published arti-

cle, and ... stated in a telephone conver-

sation that he would pursue legal action

against a museum located in the District.”

Id. The District Court concluded that

these contacts did “not warrant the exer-

cise of specific personal jurisdiction over a

nonresident defendant.” Id. The District

Court thus determined that because

“Akhmetshin ha[d] failed to demonstrate

that Mr. Browder’s other travel to the

District was not merely sporadic or occa-

sional[,] ... the Court [would] not exercise

personal jurisdiction over Mr. Browder un-

der D.C. Code § 18-423(a)(4).” Id.

The District Court also denied

Akhmetshin’s request for jurisdictional

discovery. Id. at 26-28. According to the

court, Akhmetshin had not “demonstrated

a ‘good faith belief that Mr. Browder’s

personal appearances in the District would

establish personal jurisdiction because ‘the

government contacts principle would ex-

clude [them] from the personal jurisdiction

ealculus.’” Id. at 28 (alteration in original)

22

550

(quoting NBC-USA Hous., Inc. Twenty-

Six v. Donovan, 741 F. Supp. 2d 55, 61

(D.D.C. 2010)). Thus, the District Court

found that “Akhmetshin ha[d] failed to

show that jurisdictional discovery [wal]s

warranted” and dismissed the case. Id.

On October 11, 2019, Akhmetshin filed a

timely notice of appeal to this court. He

argues that the District Court erred in

finding that it lacked personal jurisdiction

over Browder, in denying jurisdictional

discovery, and in dismissing the case rath-

er than merely his complaint.

II. ANALYSIS

A. Standard of Review

[3] “A personal jurisdiction analysis

requires that a court determine whether

[1] jurisdiction over a party is proper un-

der the applicable local long-arm statute

and [2] whether it accords with the de-

mands of due process.” United States v.

Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995)

(as amended July 28, 1995). The parties

agree that the applicable long-arm statute

is D.C. Code § 13-428. See Crane, 814 F.2d

at 762.

[4-6] We review dismissal of an action

for lack of personal jurisdiction de novo.

See FC Inv. Grp. LC v. IFX Mkts., Ltd.,

529 F.3d 1087, 1091 (D.C. Cir. 2008). The

plaintiff bears the burden of establishing

that the court has personal jurisdiction

over the defendant. Jd. Denial of jurisdic-

tional discovery is reviewed for abuse of

discretion. Id.

B. The Government Contacts Excep-

tion

In this case, the merits of Akhmetshin’s

arguments rest largely on the degree to

which Browder’s contacts in the District

should be excluded from the jurisdictional

calculus under the government contacts

exception. Because we must apply District

983 FEDERAL REPORTER, 3d SERIES

law in addressing this issue, we begin our

analysis by examining the scope of the

government contacts exception as enunci-

ated by the District of Columbia Court of

Appeals (the “Court of Appeals”).

1. Development of the Government

Contacts Exception and Applica-

bility to Nonresident Aliens

In 1976, the Court of Appeals, sitting en

bance, held that

entry into the District of Columbia by

nonresidents for the purpose of contact-

ing federal governmental agencies is not

a basis for the assertion of in personam

jurisdiction.

Env't Rsch. Int'l, 355 A.2d at 813. The

court explained that this “government con-

tacts exception” is grounded in “the unique

character of the District as the seat of

national government and in the correlative

need for unfettered access to federal de-

partments and agencies for the entire na-

tional citizenry.” Id. (emphasis added) (in-

ternal quotation marks omitted). The court

added that “[t]o permit ... courts to as-

sert personal jurisdiction over nonresi-

dents whose sole contact with the District

consists of dealing with a federal instru-

mentality not only would pose a threat to

free public participation in government,

but also would threaten to convert the

District of Columbia into a national judicial

forum.” Id.

The decision in Environmental Re-

search International indicates that the

Court of Appeals viewed the government

contacts exception as applying only to

members of the “national citizenry.” Id.

This suggests that the exception does not

apply to nonresident aliens. Later panel

decisions of the Court of Appeals, however,

have left the scope of the government con-

tacts exception “unsettled.” Companhia

Brasileira Carbureto de Calicio v. Applied

Indus. Materials Corp., 640 F.3d 369, 371

AKHMETSHIN v. BROWDER 551

Cite as 983 F.3d 542 (D.C. Cir. 2020)

(D.C. Cir. 2011); see Naartex Consulting

Corp. v. Watt, 722 F.2d 779, 786-87 (D.C.

Cir. 1988) (addressing possible tension be-

tween Court of Appeals decisions on the

government contacts exception).

To complicate matters further, in 1978, a

“decision of a D.C. Court of Appeals panel

[appears to] have limited the government

contacts exception to cases in which the

contacts with the federal government were

an exercise of First Amendment rights.”

Companhia Brasileira, 640 F.3d at 372

(citing Rose v. Silver, 394 A.2d 1368, 1372-

74 (D.C. 1978)). And in 1990, in a decision

responding to a certified question from

this court, the Court of Appeals framed an

inquiry regarding the government contacts

exception as “whether the defendants can

assert a First Amendment interest ...,

thereby permitting invocation of the ‘gov-

ernment contacts’ principle.” Lex Tex Lid.,

Inc. v. Skillman, 579 A.2d 244, 249 (D.C.

1990). If the government contacts excep-

tion applies only to defendants who pos-

sess cognizable First Amendment inter-

ests, its application to nonresident aliens

such as Browder is uncertain. See United

States v. Verdugo-Urquidez, 494 U.S. 259,

265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)

(noting that “textual exegesis ... suggests

that ‘the people’ protected by the ... First

and Second Amendments ... refers to a

class of persons who are part of a national

community or who have otherwise devel-

oped sufficient connection with this coun-

try to be considered part of that communi-

ty”).

We have found no case, nor has Browder

directed us to one, in which the Court of

Appeals has applied the government con-

tacts exception to the conduct of nonresi-

dent aliens. Instead, Browder relies on two

opinions from this court, issued after E'nvi-

ronmental Research International, in

cases in which a defendant was a nonresi-

dent alien. See Stabilisierungsfonds fur

Wein v. Kaiser Stuhl Wine Distribs. Pty.

Lid., 647 F.2d 200 (D.C. Cir. 1981); Dona-

hue v. Far E. Air Transp. Corp., 652 F.2d

1082 (D.C. Cir. 1981). The decisions in both

cases simply reference, but do not apply,

the government contacts exception. See

Stabilisierungsfonds, 647 F.2d at 205 n.11;

Donahue, 652 F.2d at 1038 n.9. According

to Browder, these decisions establish that

the government contacts exception applies

to nonresident alien defendants. We do not

agree that the decisions go as far as Brow-

der claims.

In Stabilisierungsfonds, we held that an

Australian wine producer and its distribu-

tion subsidiary were subject to long-arm

jurisdiction under D.C. Code § 13-423(a)(1)

and (a)(4) as a result of wine sales in the

District. See 647 F.2d at 205-06. In a foot-

note, we stated the following:

Counsel for [the plaintiffs] noted at oral

argument that [the Australian defen-

dants] may have acted in the District in

connection with their registration of [a

tradeJmark. The District of Columbia,

however, has grafted a “governmental

contacts” exception to its long-arm stat-

ute. That exception holds that the local

courts do not exercise personal jurisdic-

tion over a nonresident on the basis of

activity in the District relating solely to

dealings with the federal government.

We do not rest any part of our decision

on the Australians’ contacts with federal

offices.

Id. at 205 n.11 (emphasis added) (internal

citation omitted). It is theoretically possi-

ble — as Browder urges — to read the last

sentence of the footnote as an application

of the government contacts exception to

the conduct of nonresident alien defen-

dants. In our view, however, the sounder

reading is that the court took no position

on the issue. The Court found that person-

al jurisdiction existed without regard to

the nonresident aliens’ government con-

24

552 983 FEDERAL REPORTER, 3d SERIES

tacts. Jd. at 205-06. In other words, our

statement at the end of the footnote ap-

pears to have been an observation about

the general state of District law, rather

than a rule we applied in that particular

case.

In Donahue, which resulted from a ser-

ies of consolidated suits related to an air-

plane crash in Taipei, we held that a Tai-

wanese airline was not subject to personal

jurisdiction in Guam, Hawai'i, California,

New York, or the District. See 652 F. 2d at

1033-34. While arguing that courts in

Guam, Hawai’i, New York, and the District

had general personal jurisdiction over the

airline, plaintiffs “rel[ied] ... solely upon a

theory of ‘aggregated contacts’ with the

United States as a whole.” Jd. at 1038. We

rejected that basis for jurisdiction, explain-

ing that it “ha[d] attracted only limited

support in federal question cases” and

“ha[d] made no mark at all in cases” aris-

ing under state law in federal courts. Jd. at

1038-39.

During the court’s discussion of the de-

fendant’s contacts with Guam, Hawai'i,

New York, and the District, it was noted

that plaintiffs believed the airline’s interac-

tions with the Civil Aeronautics Board,

located in the District, should have fac-

tored into the jurisdictional calculus. See

id. at 1038. In response, in a footnote, the

court observed that “[dJealings with the

federal government, standing alone, do not

provide a basis for District of Columbia

exercise of personal jurisdiction over a

nonresident.” Jd. at 1038 n.9 (citing Env’t

Rsch. Intl, 355 A.2d at 818). Browder,

again, relies on this footnote as conclusive

evidence that we have applied the govern-

ment contacts exception to the conduct of a

nonresident alien defendant.

As with Stabilisierungsfonds, we do not

believe this footnote carries the prece-

dential weight that Browder urges. Unlike

in Stabilisierungsfonds, we found in Dona-

hue that the District Court lacked person-

al jurisdiction over the defendant. See id.

at 1039. But, as in Stabilisierungsfonds,

that outcome did not depend on the gov-

ernment contacts exception. Instead, we

believed jurisdiction did not exist in the

District — or in Guam, Hawai'i, or New

York — because “aggregated contacts” be-

tween different fora could not lead to gen-

eral personal jurisdiction over a defendant

in any one of them. Jd. at 1038-89. Wheth-

er the airline’s contacts with the Civil

Aeronautics Board were excluded from the

jurisdictional calculus was, therefore, im-

material in determining whether general

personal jurisdiction over the airline exist-

ed in any United States court.

In sum, in neither Stabilisierungsfonds

nor Donahue did this court unambiguously

apply the government contacts exception

to the contacts of nonresident alien defen-

dants. Nor did we engage with the difficult

question of whether the government con-

tacts exception covers such defendants. As

a result, these decisions establish no clear

precedent regarding whether the govern-

ment contacts exception applies to a non-

resident alien.

Browder further notes that in several

cases decided since Environmental Re-

search International, the District Court

appears to have assumed that the govern-

ment contacts exception applies to the con-

tacts of nonresident aliens. See, eg., LG

Display Co. v. Obayashi Seikou Co., 919 F.

Supp. 2d 17, 26-27 (D.D.C. 2013); App

Dynamic ehf v. Vignisson, 87 F. Supp. 3d

322, 327-29 (D.D.C. 2015). He is correct.

These decisions, however, do not establish

that the Court of Appeals would hold that

the government contacts exception applies

to the contacts of nonresident aliens.

If Browder cannot take advantage of the

government contacts exception because he

is a nonresident alien, then it seems clear

that his many contacts with the District

25

AKHMETSHIN v. BROWDER 553

Cite as 983 F.3d 542 (D.C. Cir. 2020)

would be sufficient to establish personal

jurisdiction under the District long-arm

statute. It is significant, albeit not disposi-

tive, that in several cases the District

Court has consistently assumed that the

government contacts exception applies to

the contacts of nonresident aliens, our

court has cited the exception without ever

doubting its efficacy in cases involving

nonresident aliens, and the D.C. Court of

Appeals has never expressly indicated that

the exception does not apply to nonresi-

dent aliens. And Browder compellingly ar-

gues that “nonresident aliens who travel to

the District to advocate for the adoption of

federal legislation do not (and should not)

expect to be sued in the District for their

extraterritorial acts.” Br. for Def.-Appellee

at 15. Nevertheless, we are reluctant to

reach this conclusion because the Court of

Appeals’ decision in Environmental Re-

search International indicates only that

the government contacts exception applies

to members of “the entire national citizen-

ry,” 355 A.2d at 813 (emphasis added),

with no reference to nonresident aliens.

If the only dispositive legal question out-

standing in this case was whether the gov-

ernment contacts exception applies to non-

resident aliens, certification to the Court of

Appeals likely would be appropriate. But

there are other grounds that might dispose

of this case without any need to determine

whether the government contacts excep-

tion applies to nonresident aliens. In these

circumstances, we believe that the wisest

course for now is to simply assume, with-

out deciding, that the government contacts

exception applies to the contacts of nonres-

ident aliens. In other words, we will as-

sume that Browder’s direct contacts with

members, agents, or instrumentalities of

the federal government, both before and

after enactment of the Magnitsky Act, may

be excluded from the jurisdictional calcu-

lus. There is nothing that compels a differ-

ent approach at this stage of the proceed-

ings.

While we “recognize that we are leaving

certain legal questions ... unresolved[,]

. these issues may become moot” de-

pending on what happens in this case mov-

ing forward. See United States v. Todd,

287 F.3d 1160, 1164-65 (D.C. Cir. 2002).

Thus, as we explain below, we will remand

the matter to the District Court for juris-

dictional discovery. Then, using the proper

legal standard for the application of the

government contacts exception, the Dis-

trict Court will recalculate Browder’s con-

tacts with the District. The recalculation

will determine whether, without regard to

any actual government contacts, Browder’s

nonexcluded contacts within the District

satisfy the District’s long-arm statute. If

the District Court’s recalculation of the

jurisdictional factors indicates that Brow-

der is subject to personal jurisdiction un-

der the District’s long-arm statute, then

we may not have to determine whether the

government contacts exception applies to

nonresident aliens.

2. The Limited Scope of the

Government Contacts

Exception

[7-10] Although there may be a ques-

tion as to whether the government con-

tacts exception extends to nonresident

aliens, the meaning and scope of the ex-

ception are otherwise straightforward with

respect to the matters at issue in this case.

The District of Columbia Court of Appeals

has made it clear that the government

contacts exception applies when nonresi-

dents’ “sole contact with the District con-

sists of dealing with a federal instrumen-

tality.” Env't Rsch. Int'l, 355 A.2d at 813

(emphases added). The court also stated

that the exception “finds its source in the

. need for unfettered access to federal

departments and agencies.” Id. (emphasis

26

554

added). Thus, under the controlling Dis-

trict law, “entry into the District of Colum-

bia by nonresidents for the purpose of

contacting federal governmental agencies

is” the key to the analysis. Jd. (emphasis

added). Based on this controlling prece-

dent, only direct contacts with members,

agents, or instrumentalities of the federal

government may be excluded from the ju-

risdictional calculus. In our view, the scope

of the government contacts exception goes

no further than this.

Browder has not identified any control-

ling authority postdating Environmental

Research International that applies the

government contacts exception to conduct

not involving direct contact with members

of the federal government or government

agencies. Instead, Browder relies heavily

on two District Court cases for support.

See Inv. Co. Inst. v. United States, 550 F.

Supp. 1218, 1216-17, 1217 né (D.D.C.

1982); United Therapeutics Corp. v. Van-

derbilt Univ., 278 F. Supp. 3d 407, 417-19

(D.D.C. 2017). These decisions cannot car-

ry the day for Browder.

In Investment Company Institute, the

District Court excluded a broker-dealer’s

application for membership in the National

Association of Securities Dealers

(“NASD”) from the jurisdictional calculus.

550 F. Supp. at 1217. The NASD was a

“self-regulatory trade association of the

. securities industry” that was “regis-

tered with the [Securities and Exchange

Commission]” and headquartered in the

District. Jd. at 1217 n.6. It is true, as

Browder notes, that NASD was not techni-

cally an instrumentality of the federal gov-

ernment. However, “[slubmission to

[NASD’s] regulation [wa]s [an] alternative

to direct regulation by the SEC.” Id. (cit-

ing 15 U.S.C. § 780-8; First Jersey Sec.,

Inc. v. Bergen, 605 F.2d 690, 692-93 (8d

Cir. 1979)). An application to a trade asso-

ciation that Congress explicitly authorized

983 FEDERAL REPORTER, 3d SERIES

to exercise regulatory authority presents a

significantly different question for pur-

poses of the government contacts excep-

tion than Browder’s post-2012 contacts

with the District, which have included con-

duct such as interviews with media outlets

and panel discussions at NGOs.

The situation in United Therapeutics is

less clear-cut. In that case, Vanderbilt Uni-

versity’s District-based Office of Federal

Relations performed, among other things,

lobbying and general advocacy work be-

fore federal officials on behalf of the uni-

versity. See United Therapeutics, 278 F.

Supp. 3d at 418. It also “work[ed] closely

with many higher education associations

and coalitions headquartered in [the Dis-

trict], ... in tandem with other Tennessee

colleges and universities ... to advance its

policy agenda,” id. (internal quotation

marks omitted), “host[ed] a two-day ...

Policy and Advocacy seminar ... focuse[d]

on the Office’s federal policy advocacy

work,” id. at 419, and “r[an] an unpaid

summer internship program for Vanderbilt

students” focused on federal public policy,

id. The District Court excluded such con-

duct from the jurisdictional calculus under

the government contacts exception, as it

“eoncern[ed] federal public policy.” Id.

Browder argues that these activities were

analogous to his general advocacy efforts

in the District after enactment of the Mag-

nitsky Act. We do not agree. The conduct

at issue in United Therapeutics appears to

have been more closely tied to “the unique

character of the District as the seat of

national government” than many of Brow-

der’s post-2012 activities in the District.

See Env't Rsch. Intl, 355 A2d at 813.

In any event, even if Investment Com-

pany Institute and United Therapeutics

stretch the limits of the government con-

tacts exception, these decisions are not

controlling precedent. Our research indi-

cates that there is no published decision

AKHMETSHIN v. BROWDER 55D

Cite as 983 F.3d 542 (D.C. Cir. 2020)

from the D.C. Court of Appeals or from

this court supporting Browder’s position

that the government contacts exception ex-

tends beyond what the court said in H’nvi-

ronmental Research International. See id.

[11] With the correct standard in

mind, we find that other than his direct

contacts with the government, Browder’s

conduct in the District after 2012 — such as

book promotional appearances, discussions

and speeches at think tanks, and inter-

views in both print and audio-visual me-

dia — should be included in the jurisdiction-

al calculus. The District Court’s exclusion

of those contacts under the government

contacts exception was error.

Since the enactment of the Magnitsky

Act, Browder’s contacts with the District —

based only on publicly available sources —

have included attendance at an April 2018

reception, sitting for an interview publish-

ed in December 2018, attendance at a book

release event in January 2014, partic-

ipation in an April 2015 panel discussion,

three book events on separate dates in

February and April 2015, sitting for an

interview published in June 2016, sitting

for three interviews on two separate dates

in July 2017, sitting for interviews on five

separate dates in April, July, August, and

November 2018, and attendance at a fu-

neral in the District in September 2018.

See J.A. 180-84. He also hired a law firm in

the District in 2016. See J.A. 264-71. This

conduct should be factored into the juris-

dictional calculus, as it did not consist of

direct contact with members, agents, or

instrumentalities of the federal govern-

ment.

To hold otherwise would mean that a

defendant who has even a single contact

with the federal government in support of

a policy agenda may then exclude all con-

tacts with the District that can be some-

how construed as efforts to advance that

agenda. A defendant could make countless

trips to the District for purposes other

than “contacting [the] federal govern-

ment ]” while having those trips excluded

from the jurisdictional calculus. See Env't

Rsch. Int'l, 355 A.2d at 818. The breadth of

such an exception, which would extend well

beyond defendants “whose sole contact

with the District consists of dealing with a

federal instrumentality,” would swallow

the rule. See id. (emphases added). We

therefore reject Browder’s arguments in

support of such a construction of the gov-

ernment contacts exception.

C. Applying the District Long-Arm

Statute and Jurisdictional Discov-

ery

Having determined the correct scope of

the government contacts exception, we

turn to whether Browder’s nonexcluded

conduct within the District after 2012 sat-

isfies the District’s long-arm statute. The

parties agree that Browder committed an

act outside the District that allegedly

caused injury inside the District. Thus,

whether there is personal jurisdiction un-

der the statute depends on whether Brow-

der’s conduct satisfies one of the plus fac-

tors. See D.C. CODE § 138-4238(a)(4); Crane

v. Carr, 814 F.2d 758, 763 (D.C. Cir. 1987).

1. The First and Third Plus Factors

Akhmetshin asserts that sales of Red

Notice in the District constitute, under the

first plus factor, regularly doing business

in the District and, under the third plus

factor, deriving substantial revenue from

the District. See Br. for Pl.-Appellant at

10-11. Akhmetshin also asserts that Brow-

der’s promotional events for the book in

2015 constituted, under the first plus fac-

tor, regularly soliciting business within the

District. See Br. for Pl.-Appellant at 10-11.

We disagree.

28

556

[12] Preliminarily, there appears to be

disagreement between the parties as to

whether Browder’s contacts related to

Red Notice should be categorically exclud-

ed from the jurisdictional calculus because

of the so-called “fiduciary shield.” Under

that doctrine, a defendant employee’s

“acts and contacts carried out solely in a

corporate capacity” within a forum are re-

moved from the jurisdictional analysis.

Flocco v. State Farm Mut. Auto. Ins. Co.,

752 A2d 147, 163 (D.C. 2000) (quoting

Wiggins v. Equifax Inc., 853 F. Supp. 500,

503 (D.D.C. 1994)). Akhmetshin argues

that the doctrine cannot preclude consid-

eration of Browder’s Red Notice-related

contacts with the District because Brow-

der — as the founder and Chief Executive

Officer of Hermitage - is more than a

mere employee. See Br. for Pl.-Appellant

at 11-13; Reply Br. for Pl.-Appellant at 11-

13. Browder, for his part, asserts that

“Akhmetshin’s discussion of the fiduciary

shield doctrine is ... inapposite.” Br. of

Def.-Appellee at 25 (citation omitted).

[13,14] Based on the current record, it

is not clear to us that the fiduciary shield

doctrine is relevant to this case. A panel of

this court recently noted, in considering

the applicability of the doctrine to another

subsection of the District’s long-arm stat-

ute, that “when District of Columbia courts

discuss the fiduciary shield doctrine, they

do so only in the context of construing

what they perceive to be the outer limits of

the Due Process Clause.” Urquhart-Brad-

ley v. Mobley, 964 F.3d 36, 47 (D.C. Cir.

2020) (emphasis added) (citations omitted).

In this case, by contrast, at issue is wheth-

er Browder’s contacts satisfy the District’s

statutory requirements for the exercise of

long-arm jurisdiction. Moreover, the Court

of Appeals has “explicitly decline[d] to

adopt ... an absolute ‘fiduciary shield’

doctrine,” or “a per se rule that an employ-

ee’s acts in his official capacity may never

983 FEDERAL REPORTER, 3d SERIES

give rise to personal jurisdiction over him.”

Flocco, 752 A.2d at 163 n.20. And in this

case, Browder - as the author of Red

Notice — was, at least in part, acting in an

individual capacity when promoting the

book in the District. See Daley v. Alpha

Kappa Alpha Sorority, Inc., 26 A.3d 723,

728 n.3 (D.C. 2011) (holding the fiduciary

shield doctrine inapplicable to “individual

. officers and directors” of an organiza-

tion’s governing body who “were also in

part acting in their individual capacities as

. members” of that body when under-

taking conduct within the District). Thus,

Browder’s in-forum conduct related to Red

Notice is not categorically excluded from

the jurisdictional calculus under the fidu-

ciary shield doctrine.

[15] Nevertheless, even if such con-

tacts are not subject to the fiduciary shield

doctrine, they do not suffice to confer per-

sonal jurisdiction under the first or third

plus factors. In McFarlane v. Esquire

Magazine, which involved a magazine arti-

cle, we explained that “[t]he writer is not

the publisher; [the author]’s contacts must

be assessed separately” for the purpose of

establishing jurisdiction. 74 F.8d 1296,

1300 (D.C. Cir. 1996) (citation omitted).

The same admonition applies here. Simon

& Schuster, rather than Browder himself,

makes the sales decisions for Red Notice,

“including where to sell the book, how

many copies each state or store receives,

and how the book is advertised.” Decl. of

Ivan Cherkasov 1 4, J.A. 372. That the

book is sold in the District does not, there-

fore, mean that Browder himself is regu-

larly doing business here.

Similarly, Browder does not directly re-

ceive revenue from sales of Red Notice in

the District. Such revenue goes to Simon

& Schuster, as well as one of Hermitage’s

corporate entities. See id. at 16, J.A. 378.

And the amount of revenue generated by

sales of Red Notice in the District — per

AKHMETSHIN v. BROWDER 557

Cte as 983 F.3d 542 (D.C. Cir. 2020)

sealed documents Browder submitted to

the District Court — is de minimis for a

book that is, in Akhmetshin’s own words, a

“best-seller.” See Compl. 1 68, J.A. 18; see

also Br. for Pl.-Appellant at 6 (describing

Red Notice as a “bestselling book”); Reply

Br. for Pl.-Appellant at 4 (same). Accord-

ingly, based on the current record, we

cannot say that Browder derives substan-

tial revenue from sales of the book in the

District.

[16] Akhmetshin also notes - and

Browder does not contest — that, on at

least three occasions in 2015, Browder ap-

peared at events in the District to promote

Red Notice. But such appearances, on

their own, are not sufficient to establish

that Browder was “regularly” soliciting

business in the District under the first plus

factor. See D.C. CODE § 13-423(a)(4) (em-

phasis added). As the Court of Appeals has

explained, “‘[t]he use of ... ‘regularly’ to

describe the type of contact contemplated

indicates that ... the minimal contacts

with the District that are required should

at least be continuing in character.’” Par-

sons v. Mains, 580 A.2d 1329, 1330 (D.C.

1990) (per curiam) (quoting Sec. Bank, N.

A. v. Tauber, 347 F. Supp. 511, 515 (D.D.C.

1972)). Three appearances promoting a

book over a span of months several years

ago does not satisfy that requirement. See

id. (holding that a “defendant’s entry of an

appearance as counsel in two or at most

three matters over a ... period of ten

years or longer” in the District was insuffi-

cient to establish jurisdiction under section

18-423(a)(4)).

We therefore agree with the District

Court’s conclusion that - based on the

current record — neither the first nor third

plus factors are satisfied. See Akhmetshin,

407 F. Supp. 3d at 21-22,

2. The Second Plus Factor

[17,18] We turn now to the second

plus factor, which focuses on whether

Browder has engaged in a “persistent

course of conduct” in the District. This is

not a particularly high bar, and it “denotes

connections considerably less substantial

than those required to establish general,

‘all purpose’ jurisdiction on the basis of

‘doing business’ in the forum.” Steinberg v.

Int'l Crim. Police Org., 672 F.2d 927, 931

(D.C. Cir. 1981). Such a requirement

serves “to exclude cases in which th[e in-

forum] impact is an isolated event and the

defendant otherwise has no, or scant, affili-

ations with the forum.” Jd.

[19] According to the Court of Ap-

peals, two or three trips to the District

over the course of a decade likely would

not constitute a persistent course of con-

duct. See Parsons, 580 A.2d at 1330. How-

ever, trips to the District once or twice a

month for a period of years — depending

on a defendant’s conduct during them —

might well suffice. See Htchebarne-Bour-

din v. Radice, 754 A2d 322, 325 & n5

(D.C. 2000) (noting that a trial court in the

District concluded that entrance into the

District “between one and two times a

month” for business purposes over a peri-

od of several years constituted a persistent

course of conduct). Based on the record

before us, Browder’s conduct within the

District appears to fall somewhere be-

tween these two bounds. That record, how-

ever, is incomplete.

3. Jurisdictional Discovery

[20-22] Trial courts generally have

“broad discretion” in ordering or denying

discovery. See Jeffries v. Barr, 965 F.3d

848, 855 (D.C. Cir. 2020) (quoting In re

Mulii-Piece Rim Prods. Liab. Litig., 653

F.2d 671, 679 (D.C. Cir. 1981)). But a trial

court “by definition abuses its discretion

when it makes an error of law.” Koch v.

Cox, 489 F.3d 384, 388 (D.C. Cir. 2007)

(quoting In re: Sealed Case (Med. Rec-

30

558

ords), 381 F.3d 1205, 1211 (D.C. Ci.

2004)). Thus, “the ‘abuse-of-discretion

standard includes review to determine that

the discretion was not guided by erroneous

legal conclusions.’” Jd. (quoting In re:

Sealed Case (Med. Records), 381 F.3d at

1211).

[23] As discussed above, the District

Court based its discovery decision on an

incorrect view of the applicable law. Ac-

cording to the court, jurisdictional discov-

ery was not warranted because the gov-

ernment contacts exception would remove

virtually all of Browder’s personal appear-

ances in the District from the jurisdictional

calculus. Akhmeishin, 407 F. Supp. 3d at

28. That conclusion was premised on an

overly broad view of the government con-

tacts exception. Even excluding his direct

contacts with the federal government and

its instrumentalities, Browder has had sig-

nificant contacts with the District.

“[Akhmetshin] has pointed to links

[Browder] has [had] with the District suffi-

cient at least to permit further inquiry

regarding personal jurisdiction, so that the

statutory ... questions can be resolved on

a fuller record.” See Crane, 814 F.2d at

760 (citation omitted). It is not clear

“whether jurisdictional discovery will as-

sist [Akhmetshin] on this score, but [he] is

entitled to pursue precisely focused discov-

ery aimed at addressing” whether Brow-

der has engaged in a persistent course of

conduct within the District. See GTE New

Media Servs. Inc. v. BellSouth Corp., 199

F.3d 1348, 1352 (D.C. Cir. 2000).

Il.

For the reasons set forth above, we

vacate the judgment of the District Court,

reverse the court’s refusal to allow juris-

dictional discovery, and remand the matter

to allow the District Court to supplement

the existing record. We are ordering “ju-

risdictional discovery to permit develop-

CONCLUSION

983 FEDERAL REPORTER, 3d SERIES

ment of the record on [Browder’s] contacts

with the District of Columbia.” Urquhart-

Bradley, 964 F.3d at 49. Following discov-

ery, the District Court must determine

whether Browder engaged in a persistent

course of conduct sufficient to subject him

to personal jurisdiction under the District’s

long-arm statute. If the District Court de-

termines that Browder is subject to per-

sonal jurisdiction, the court may then con-

sider Browder’s motion to dismiss under

Rule 12(b)(6) for failure to state a cause of

action.

TATEL, Circuit Judge, dissenting:

The Supreme Court recently warned

federal courts against “(s]peculat[ing]”

about “novel issues of state law peculiarly

calling for the exercise of judgment by the

state courts.” McKesson v. Doe, 592 U.S.

—, — , 141 S.Ct. 48, 51, 208 L.Ed.2d

158 (2020) (per curiam) (internal quotation

marks omitted). Such speculation, the

Court explained, “‘is particularly gratu-

itous when the state courts stand willing to

address questions of state law on certifica-

tion.’” Id. (quoting Arizonans for Official

English v. Arizona, 520 U.S. 48, 79, 117

S.Ct. 1055, 187 L.Ed.2d 170 (1997)). That

is the case here. Pursuant to D.C. Code

section 11-723(a), our court may certify

“questions to the D.C. Court of Appeals

when ‘District of Columbia law is genuine-

ly uncertain’ and the question is of ‘ex-

treme public importance.” Companhia

Brasileira Carbureto de Calicio v. Applied

Industrial Materials Corp., 640 F.3d 369,

373 (D.C. Cir. 2011) (quoting Sturdza v.

United Arab Emirates, 281 F.3d 1287,

1303 (D.C. Cir. 2002), certified question

answered, 11 A.3d 251 (D.C. 2011)), certi-

fied question answered, 35 A.3d 1127 (D.C.

2012). In my view, the questions here sat-

isfy both requirements and should be certi-

fied to the D.C. Court of Appeals.

AKHMETSHIN v. BROWDER 559

Cite as 983 F.3d 542 (D.C. Cir. 2020)

L

The government contacts exception

traces its roots to a series of D.C. Cireuit

decisions issued prior to enactment of the

District of Columbia Court Reform and

Criminal Procedure Act of 1970. In Muel-

ler Brass Co. v. Alexander Milburn Co.,

our court held that keeping an agent in the

District of Columbia “to maintain contact

with the Government agencies in respect

to reports, allocations and directives relat-

ing to materials for production” did not

amount to “doing business” under the rele-

vant long-arm statute. 152 F.2d 142, 144

(D.C. Cir. 1945); see also Fandel v. Ara-

bian American Oil Co., 345 F.2d 87, 88-89

(D.C. Cir. 1965) (excluding the govern-

ment-related activities of a District of Co-

lumbia office from the jurisdictional analy-

sis because they did not constitute “doing

business” under the long-arm statute);

Traher v. De Havilland Aircraft of Cana-

da, Lid., 294 F.2d 229, 230 (D.C. Cir. 1961)

(per curiam) (concluding that service was

properly quashed when the only contact

with the District was the maintenance of a

single agent “who serve[d] as a liaison or

contact man with the United States Gov-

ernment”). We likened this to our deci-

sions excluding out-of-town news gathering

from the jurisdictional analysis. If having

agents in the District for the purpose of

news gathering qualified as jurisdictional

contacts, we explained, “ ‘it would bring in

nearly every important newspaper in the

nation, and many foreign publishing corpo-

rations.’” Mueller Brass Co., 152 F.2d at

143 (quoting Neely v. Philadelphia Inquir-

er Co., 62 F.2d 878, 875 (D.C. Cir. 1932)).

After the newly-created D.C. Court of

Appeals assumed responsibility for inter-

preting D.C. law, that court reaffirmed the

government contacts exception in Hnvi-

ronmental Research International, Inc. v.

Lockwood Greene Engineers, Inc., 355

A.2d 808, 8138 (D.C. 1976) (en banc). There,

citing our pre-1970 decisions and sitting en

banc, the court explained that “entry into

the District of Columbia by nonresidents

for the purpose of contacting federal gov-

ernmental agencies [wa]s not a basis for

the assertion of in personam jurisdiction.”

Id. The court grounded the exception “in

the unique character of the District as the

seat of national government and in the

correlative need for unfettered access to

federal departments and agencies for the

entire national citizenry.” Id. Allowing

courts to assert personal jurisdiction when

nonresidents’ “sole contact with the Dis-

trict consist[ed] of dealing with a federal

instrumentality,” the court explained, not

only would “pose a threat to free public

participation in government, but also

would threaten to convert the District of

Columbia into a national judicial forum.”

Id. Accordingly, visits “to the District of

Columbia to consult with officials of the

EPA concerning the possibility of a grant”

did not amount to transacting business

under the long-arm statute. Id.

The first question in this case is whether

the government contacts exception is limit-

ed to those who seek to influence federal

legislation and policy through direct con-

tacts with government officials, such as by

visiting them in their offices, or whether it

extends to those who likewise seek to in-

fluence federal policy but through such

tried and true methods as press confer-

ences, talk show appearances, or “book

promotional appearances, discussions and

speeches at think tanks, and interviews in

both print and audio-visual media.” Majori-

ty Op. at 555; see Akhmetshin v. Browder,

407 F. Supp. 3d 11, 24-25 (D.D.C. 2019)

(finding that Browder’s “media interviews”

either “concerned the Magnitsky Act” or

were “intended to challenge any efforts to

repeal” the Act (internal quotation marks

omitted)). According to my colleagues, the

D.C. Court of Appeals resolved this very

issue in Environmental Research. In sup-

32

560

port, they emphasize certain words and

phrases used by the Court of Appeals—

“sole,” “dealing with a federal instrumen-

tality,” “for the purpose of contacting fed-

eral governmental agencies”’—as well as

that when the court referred to “unfet-

tered access,” it specified “to federal de-

partments and agencies.” Majority Op. at

553-54. “Based on this controlling prece-

dent,” the court concludes, “only direct

contacts with members, agents, or instru-

mentalities of the federal government may

be excluded from the jurisdictional calcu-

lus.” Majority Op. at 554.

I beg to differ. “[A] judicial decision

resolves only the case before it,” Spanski

Enterprises, Inc. v. Telewizja Polska, S.A.,

883 F.3d 904, 911 (D.C. Cir. 2018), and the

only question before the court in Environ-

mental Research was whether direct con-

tacts, ie., “consultation” with government

officials, should be excluded from the juris-

dictional analysis. Efforts to influence fed-

eral policy through media events were not

involved, and nothing in the court’s opin-

ion—let alone the words my colleagues

emphasize—even hints that the court

meant to address such efforts, much less

exclude them from the government con-

tacts exception.

It is true, as the court points out, that

“Browder has not identified any control-

ling authority postdating Environmental

Research International that applies the

government contacts exception to conduct

not involving direct contact with members

of the federal government or government

agencies.” Majority Op. at 554. But there

is a very good reason for that. Post-Envi-

ronmental Research, the D.C. Court of

Appeals has heard not a single case where

the party invoking the government con-

tacts exception had, like Browder, traveled

to Washington in an effort to influence

federal legislation through media events.

As in Environmental Research, every sub-

983 FEDERAL REPORTER, 3d SERIES

sequent case involved direct contacts with

government officials: “negotiat[ions] with

the FDA,” Rose v. Silver, 394 A.2d 1368,

1369 (D.C. 1978), reh’g en banc denied, 398

A.2d 787 (D.C. 1979); “patent applications

before the United States Patent and

Trademark Office,” Lex Tex Lid., Inc. v.

Skillman, 579 A.2d 244, 245 (D.C. 1990);

and “petition[s] [to] the U.S. International

Trade Commission,” Companhia Brasi-

leira Carbureto De Calcio v. Applied In-

dusirial Materials Corp., 35 A38d 1127,

1132 (D.C. 2012). The same is true of our

post-E’nvironmental Research cases. None

involved media events. They instead in-

volved direct contacts: “personal appear-

ances” before the Department of the Inte-

rior, Naartex Consulting Corp. v. Watt,

722 F.2d 779, 787 (D.C. Cir. 1983) (internal

quotation marks omitted); a “letter” to a

government official, United States v. Fer-

rara, 54 F.3d 825, 831 (D.C. Cir. 1995);

“petitions” to a federal agency and hiring

“a, District of Columbia law firm,” Bechtel

& Cole v. Graceland Broadcasting Inc., 18

F.3d 953 (D.C. Cir. 1994) (unpublished ta-

ble decision); and “act[ing] in the District

in connection with the[ ] registration of” a

trademark, Stabilisierungsfonds Fur Wein

v. Kaiser Stuhl Wine Distributors Pty.

Ltd., 647 F.2d 200, 205 n.11 (D.C. Cir.

1981). To be sure, “judicial opinions estab-

lish precedential principles that apply to

materially similar factual scenarios arising

in future cases.” Spanski Enterprises, 883

F.3d at 911. But neither Hnvironmental

Research nor any later case, from either

the D.C. Court of Appeals or our court, is

“materially similar” to this case because

none involved efforts to influence federal

legislation through media events.

Contrary to the court, then, no “control-

ling precedent” resolves the question of

whether the government contacts excep-

tion extends to those who travel to Wash-

ington to influence federal policy through

media events. The issue, moreover, satis-

AKHMETSHIN v. BROWDER 561

Cite as 983 F.3d 542 (D.C. Cir. 2020)

fies both of our requirements for certifica-

tion. Because neither the D.C. Court of

Appeals nor our court has ever squarely

addressed the question, and because nei-

ther court has left a “discernible path for

[us] to follow,’” Dial A Car, Inc. v. Trans-

portation, Inc., 182 F.3d 743, 746 (D.C.

Cir. 1998) (quoting Tidler v. Eli Lilly &

Co., 851 F.2d 418, 426 (D.C. Cir. 1988)),

“the scope of the government contacts ex-

ception is genuinely uncertain,” Compan-

hia Brasileira, 640 F.3d at 373. And be-

cause those seeking to influence federal

policy rely so heavily on contacting federal

officials through the media—think

MSNBC, Fox News, CNN, etcetera etcet-

era—the question is of “sufficient public

importance.” Jd.

Of course, the D.C. Court of Appeals

might well agree with my colleagues. But

given the uncertainty of District law and

the importance of this issue, that “choice

[is] not ours to make.” Owens v. Republic

of Sudan, 864 F.3d 751, 811 (D.C. Cir.

2017), certified question answered, 194

A.3d 38 (D.C. 2018), vacated and remand-

ed on other grounds sub nom. Opati v.

Republic of Sudan, —— U.S. ——, 140 8.

Ct. 1601, 206 L.Ed.2d 904 (2020).

Il.

I would also certify the second question

in this case: whether a foreign citizen like

Browder can invoke the government con-

tacts exception. See Majority Op. at 553

(explaining that if the court were to reach

this issue, “certification to the Court of

Appeals likely would be appropriate”).

Recall that in Environmental Research,

the D.C. Court of Appeals grounded the

government contacts exception in both

First Amendment and due process princi-

ples. But in a later case, Rose v. Silver, a

panel of that court “conclude[d] that the

First Amendment provides the only princi-

pled basis for exempting a foreign defen-

dant from suit in the District of Columbia.”

394 A.2d at 1874. The full court subse-

quently denied rehearing en banc. Rose v.

Silver, 398 A.2d 787. As our court ob-

served in Naartex Consulting Corp. »v.

Wait, Rose “appeared to limit the ‘govern-

ment contacts’ exception to activities impli-

cating [FJirst [A]mendment rights.” 722

F.2d at 786; see also Companhia Brasi-

leira, 640 F.3d at 372 (“[A] subsequent

decision of a D.C. Court of Appeals panel

may have limited the government contacts

exception to cases in which the contacts

with the federal government were an exer-

cise of First Amendment rights.”).

Relying on Rose and citing our cases,

Akhmetshin argues that the government

contacts exception does not apply to Brow-

der because he “has no First Amendment

right to petition the United States govern-

ment given that he voluntarily relinquished

his U.S. citizenship.” Appellant’s Br. 23. In

Naartex, however, we said only that Rose

“appeared” to limit the exception, not that

it actually did, and we did so because, as

with our court, a panel of the D.C. Court

of Appeals has no authority to issue a

decision that conflicts with an earlier deci-

sion, especially one issued by the en banc

court. We explained:

In denying rehearing en banc in the

Rose case, the full court failed to explain

or reconcile the apparent conflict with

the Environmental Research opinion,

one judge finding none, and two other

judges calling for the explicit rejection

of the panel opinion in Rose. Since that

time, the court has failed to clarify any

possible conflict. Inasmuch as the denial

of rehearing is evidence that no irrecon-

cilable tension exists between the en

banc opinion and a subsequent panel

opinion, and considering that a panel of

the District of Columbia Court of Ap-

peals is prohibited from issuing an opin-

ion which conflicts materially with a pri-

34

562 983 FEDERAL REPORTER, 3d SERIES

or decision of the full court as this may

be done only by the court sitting en

banc, if it were necessary to determine

what law controls today in the District

of Columbia, we would still be hesitant

to conclude that the clear holding

against governmental contacts as a basis

for personal jurisdiction in Environmen-

tal Research no longer controls,

Fortunately, if there is any tension be-

tween Environmental Research and

Rose, we need not resolve it ....

Naartex, 722 F.2d at 786-87 (alteration

omitted) (internal quotation marks omit-

ted) (citations omitted). A later panel of

the D.C. Court of Appeals noted much the

same. See Companhia Brasileira, 35 A.3d

at: 1131 (““[Slome of our decisions may have

implicitly narrowed the scope of the gov-

ernment contacts doctrine by concluding

that ‘the First Amendment provides the

only principled basis’ supporting it.” (em-

phasis added) (quoting Rose, 394 A.2d at

1374)). Although, as Browder points out,

our court has previously mentioned the

government contacts exception in “refer-

ence” to non-citizens, see Majority Op. at

551-52 (discussing the two cases upon

which Browder relies), neither our court

nor the D.C. Court of Appeals has ever

squarely addressed whether a citizen of

another country may invoke the exception.

Given this, and given the unresolved ten-

sion between Environmental Research

and Rose, District of Columbia law is “gen-

uinely uncertain” as to whether a foreign

citizen may invoke the government con-

tacts exception, “a question of state law

that is vital to a correct disposition of the

case before” us. Tidler, 851 F.2d at 426.

Indeed, we have previously certified a dif-

ferent question to the D.C. Court of Ap-

peals due to the very uncertainty that

Rose created. See Companhia Brasileira,

640 F.3d at 373.

The question is also of “extreme public

importance.” Joy v. Bell Helicopter Tex-

tron, Inc., 999 F.2d 549, 564 (D.C. Cir.

1993) Gnternal quotation marks omitted).

For one thing, it implicates a potential

conflict between two decisions of the D.C.

Court of Appeals—a conflict only that

court may resolve. See M.A.P. v. Ryan,

285 A.2d 310, 312 (D.C. 1971) (“[N]o divi-

sion of this court will overrule a prior

decision of this court ... [.] [Such result

can only be accomplished by this court en

bane.” (footnote omitted)). Moreover, just

as Browder has spent years seeking pas-

sage and enforcement of the Magnitsky

Act, individuals and corporations through-

out the world seek to influence U.S. legis-

lation and policy. See Companhia Brasi-

leira, 640 F.3d at 378 (concluding that the

question to be certified was “of sufficient

public importance because its resolution

could affect numerous individuals and cor-

porations that petition the federal govern-

ment”); Nationwide Mutual Insurance Co.

v. Richardson, 270 F.3d 948, 950 (D.C. Cir.

2001) (explaining that because the clause

at issue “potentially affect[ed] the insur-

ance coverage of most businesses in the

District of Columbia,” the question was

“one of significant import to the public”),

certified question answered, 826 A.2d 310

(D.C. 2003), reh’g en banc granted, opinion

vacated, 8382 A.2d 752 (D.C. 2003), vacated

pursuant to setilement, 844 A.2d 344 (D.C.

2004). Lastly, the issue affects core First

Amendment values because it is far from

clear whether the right to petition the

government extends to Browder as a non-

citizen. See, e.g., United States v. Verdugo-

Urquidez, 494 U.S. 259, 265, 110 S.Ct.

1056, 108 L.Ed.2d 222 (1990) (explaining

that the Constitution’s use of the phrase

“the people” in the First Amendment “sug-

gests that ‘the people’ protected by” that

amendment “refers to a class of persons

who are part of a national community or

who have otherwise developed sufficient

35

AKHMETSHIN v. BROWDER 563

Cite as 983 F.3d 542 (D.C. Cir. 2020)

connection with this country to be consid-

ered part of that community”); DKT Me-

morial Fund Lid. v. Agency for Interna-

tional Development, 887 F.2d 275, 285

(D.C. Cir. 1989) (expressing skepticism

that foreign alien organizations were

“within the ‘zone of interests to be protect-

ed or regulated by’” the First Amendment

(quoting Association of Data Processing

Service Organizations v. Camp, 397 U.S.

150, 158, 90 S.Ct. 827, 25 L.Ed.2d 184

(1970)).

Il.

It goes without saying that the pandem-

ic ravaging our nation is having a profound

impact on the issues in this case. Fewer

individuals are traveling to Washington to

visit members of Congress, much less to

participate in media events. But we have a

specific case before us—William Browder

traveled to the District to meet with gov-

ernment officials and repeatedly returned

to participate in a series of media events—

and we must decide that case. In any

event, someday the pandemic will end, and

even though travel to Washington may

never return to pre-pandemic levels, how

the courts resolve the two issues in this

case could significantly affect one of this

city’s major businesses: lobbying.

Accordingly, I would certify the follow-

ing two issues to the D.C. Court of Ap-

peals:

1. Does the government contacts ex-

ception extend to efforts to influence

federal legislation and policy through

the media and, if so, what standard

should courts apply to determine which

kinds of activities, ranging from press

conferences aimed at specific legislation

to general public advocacy, are covered?

2. May a citizen of a foreign country

who is not a resident alien invoke the

government contacts exception?

As in all certifications to the D.C. Court

of Appeals, that court would “exercise [its]

prerogative to frame the basic issues as [it]

see[s] fit for an informed decision.” Dela-

hanty v. Hinckley, 564 A.2d 758, 760 (D.C.

1989) Gnternal quotation marks omitted).

Ww

o E KEY NUMBER SYSTEM

T

36

DEFENDANT-APPELLEE’S PETITION FOR PANEL

REHEARING OR REHEARING EN BANC

37

38

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Case No. 19-7129

RINAT AKHMETSHIN

Plaintiff-Appellant,

-v.-

WILLIAM BROWDER,

Defendant-Appellee.

On Appeal from the United States District Court

for the District of Columbia, No. 18-cv-1638

The Honorable Emmet G. Sullivan

DEFENDANT-APPELLEE WILLIAM BROWDER’S

PETITION FOR PANEL REHEARING OR REHEARING EN BANC

Michael J. Gottlieb

Stephanie L. Miner

WILLKIE FARR & GALLAGHER LLP

1875 K Street, NW

Washington, DC 20006

mgottlieb@willkie.com

Telephone: (202) 303-1000

Facsimile: (202) 303-2000

Counsel for William Browder

TABLE OF CONTENTS

TABLE OF CONTENTS... ccccscssesesssesesesesesssesecenessesssssacaeesesseseseseseeseesenees

TABLE OF AUTHORITIES 000... ee eeceseescesceseseeeesesaeeeesacesesseeseeeeseseeeeeseeeees

INTRODUCTION AND RULE 35 STATEMENT 0.0... ceeceeseeeeeeeseeeeeeeeeeees

STATEMENT OF THE CASE... ececeeeessesecsseseseceeeteeteseeeceneescesaeeneeaseeteaseneeas

REASONS FOR GRANTING THE PETITION... eeeeseseseseseeceeeeeeeeeeeenens

I. The Panel Materially Misread the Factual Record................0

Il. The Panel’s “Direct Contact” Limitation Conflicts With

Binding Precedents And Would Upend The Purpose Of The

Government Contacts ExCeption...........cc:ccccssscccessscesssnecsssreceeees

A. The “Direct Contact” Limitation Departs From The

Holding And Purpose Of Environmental Research..........

B. The “Direct Contact” Limitation Conflicts With the

Supreme Court’s Noerr-Pennington Doctrine.............06+

C. The “Direct Contact” Limitation Conflicts With This

Court’s Seminal Government Contacts Exception

Precedents .........csecesssssessececceecescesesesesseessseeseceesesseseneeneesees

CONCLUSION ........ccccccssscssesceetessesseseecsecseeeesneseesaeesesaessesaneeeateesessessessseseeaneaes

CERTIFICATE OF COMPLIANCE ..........::csccsssscessestecesseeseeseessesseesesseeeeeneeaes

CERTIFICATE OF SERVICE .........ccccssssssssssesreeceesccseesecseesecsneseeseesaeeneeeneaes

ADDENDUM

Akhmetshin v. Browder,

No. 19-7129 (D.C. Cir. Dec. 29, 2020) oo. eee eeeeeeeeeeceseeeeeeenereeeeeneeees

Certificate As To Parties, Rulings, And Related Cases .............cscccsssesesteeeeees

39

40

TABLE OF AUTHORITIES

Page(s)

Cases

Akhmetshin v. Browder,

407 F. Supp. 3d 11 (D.D.C. 2019)... cececsseesssesssecseeeeneessesssecsssessecsees 3,4,8

Allied Tube & Conduit Corp. v. Indian Head, Inc.,

486 U.S. 492 (1988)...... ce eccccssecssccsssesseccssecssecssseesecseeseseeessesseeseaeseseceeesesseseaeess 13

Companhia Brasileira Carbureto De Calcio v. Applied Indus.

Materials Corp.,

35 A.3d 1127 (D.C. 2012) ooo. eee cesccsseesseessecsseesseecssecseecsaescseeesseeseeeeeseeeees 10, 11

E. R. R. Presidents Conf. v. Noerr Motor Freight, Inc.,

365 U.S. 127 (1961)... ecccssscssscesseessseessesseessseeeseecsnesssesssecssasesaeesseceseeeseeenes 2, 13

Envtl. Research Int’l, Inc. v. Lockwood Greene Eng’rs, Inc.,

355 A.2d 808 (D.C. 1976) .......eceecccssseesseescesseessnessressseesseeeseeees 1,9, 10, 11, 12, 16

Everett v. Nissan Motor Corp. in U.S.A.,

628 A.2d 106 (D.C. 1993) ou... cesccsssecssecssecsssesssessseceseesseceseessenesesesseesseesaeees 10, 15

Fandel v. Arabian American Oil Co.,

345 F.2d 87 (D.C. Cir. 1965) ...ccccccccsccssecssscssscesseessecssscessecssecsseesueesseseseeeeeees 15

Fed. Prescription Serv., Inc. v. Am. Pharm. Ass’n,

663 F.2d 253 (D.C. Cir. 1981)... ceeeessesseescesssesseeesesesseessuessssesseeseeessesesseesaes 14

Groop Internet Platform Inc. v. Psychotherapy Action Network,

No. CV 19-1854 (BAH), 2020 WL 353861 (D.D.C. Jan. 21, 2020) ..............6 16

Hughes v. A.H. Robins Co.,

490 A.2d 1140 (D.C. 1985) ooo. ccscessessscesseesseecseecsaeessecsseesssessseseseeeseessaeess 15

Inv. Co. Inst. v. United States,

550 F. Supp. 1213 (D.D.C. 1982)... eecceccsscsseeesssesesessessnesseseseeeeseeesssesasenees 16

Jung v. Ass’n of Am. Med. Colls.,

300 F. Supp. 2d 119 (D.D.C. 2004)... ceecesessseeescesseecseessseesseesseeessessesesaneeees 16

-ii-

41

Mueller Brass Co. v. Alexander Milburn Co.,

152 F.2d 142 (D.C. Cir. 1945)... cc ccecscsseseessccseccssesecessnesseeseessecsseeseesessneseeeaes 14

Nader v. Democratic Nat’] Comm.,

567 F.3d 692 (D.C. Cir. 2009)... eescessessccseeseessceeseeseseeesasesseessesereseeeseseaeenees 14

Sierra Club v. Tenn. Valley Auth.,

905 F. Supp. 2d 356 (D.D.C. 2012)... cececessescsssecescesnesceseeeecseeenesseeenesenenaes 16

United Therapeutics Corp. v. Vanderbilt Univ.,

278 F. Supp. 3d 407 (D.D.C. 2017).......cccecccsccssesseeesecseeseceeeeeeessersneeeenaeeeeeens 8, 16

World Wide Minerals Ltd. v. Republic of Kazakhstan,

116 F. Supp. 2d 98 (D.D.C. 2000) 0... cece eesecssescecseseeceeneeeseeecenessesssesneenseeeeaes 16

Rules

Fed. R. App. P. 35(a)(1)-(2).....:cccscccsssscsssecessteceseeecseeeeseeesseeseseeecseesessesessnesenenesseeeeeses 2

Fed. R. App. 40(a)(2) .....cccsccccssessssccssecsssecsseseseecesseecesssecssesesseeceaeeessaseceeseseaeeseaeessaes 1

-iii-

42

INTRODUCTION AND RULE 35 STATEMENT

Defendant-Appellee William Browder respectfully requests panel rehearing

and rehearing en banc of the December 29, 2020 decision vacating the District

Court’s Order dismissing for lack of personal jurisdiction under the “government

contacts exception” to the D.C. long-arm statute (the “Decision”). See Addendum

(“A”) at 1-27.

Panel rehearing is appropriate under Fed. R. App. 40(a)(2) because the

decision misapprehended the factual record regarding Browder’s contacts in the

District after 2012, and misinterpreted the governing law applicable to those

contacts. Relying on the “appearance” of those contacts rather than an examination

of the record, the panel erroneously presumed that Browder’s visits to the District

after 2012 were not tied to the “unique character of the District as a seat of the

national government.” (A19). But the record is unequivocal that Browder’s visits

were intended to influence federal government policy, and also that his post-2012

visits included numerous direct interactions with the federal government.

Rehearing en banc (or panel rehearing) is necessary to correct the panel’s

misreading of the government contacts exception as articulated by the D.C. Court of

Appeals in Environmental Research International, Inc. v. Lockwood Greene

Engineers, Inc., 355 A.2d 808, 813 (D.C. 1976). Departing from the holding and

facts of Environmental Research, as well as the prior precedents of this Court on

43

which Environmental Research relied, the panel erroneously asserted that only

“direct contacts” with the federal government are subject to the exception. (A18).

The panel’s “direct contact” rule misapprehends the nature of lobbying, which

typically involves interaction with the media, think tanks, and non-governmental

bodies as part of advocates’ efforts to foment government action. Absent rehearing,

the panel’s rule threatens to inhibit the exercise of public participation rights, and

would risk converting the District into a national judicial forum by authorizing

expansive jurisdiction over the extraterritorial acts of nonresidents (including U.S.

citizens) who travel to D.C. to petition the government.

The panel’s “direct contact” requirement conflicts with longstanding Supreme

Court precedent holding that indirect efforts to persuade the federal government,

including appeals made via mass media, are entitled to the same protections as

advocates’ direct government engagements. See E. R. R. Presidents Conf. v. Noerr

Motor Freight, Inc., 365 U.S. 127, 140 (1961). The panel’s imposition of a “direct

contact” limitation also conflicts with this Court’s seminal cases establishing the

government contacts exception. Rehearing en banc is necessary to ensure the

uniformity of this Court’s precedents on this question of exceptional importance.

See Fed. R. App. P. 35(a)(1)-(2).

44

STATEMENT OF THE CASE

Browder is a British national who resides in the United Kingdom and is a

leading global human rights and anti-corruption advocate. Akhmetshin v. Browder,

407 F. Supp. 3d 11, 14-15 (D.D.C. 2019) (JA376-77).! Browder advocated for

Congress to enact the Sergei Magnitsky Act in 2012, and he continued his public

policy advocacy in the District after 2012, including by urging Congress to enact the

2016 Global Magnitsky Human Rights Accountability Act. After 2016, Browder

urged Congress and the Justice Department to enforce the Foreign Agents

Registration Act against persons (including Plaintiff) who on behalf of Russian

interests were lobbying in the U.S. (without registering) against the Magnitsky

legislation; at that same time, Browder also fought efforts to repeal the Act or rename

the 2016 legislation, and petitioned the Executive Branch to designate persons for

sanctions under the 2012 and 2016 Magnitsky Acts. Jd. at 24-25 (JA400-01);

Compl. 22-24, 26, 32-37, ECF No. 1 (JA10-13); ECF No. 20 at 8 (JA41).

Browder’s human rights advocacy necessitated his visits to D.C. given the District’s

unique role as the seat of the national government—the visits served no commercial

purpose and Browder earned no money from his advocacy in the District.

On July 12, 2018, Plaintiff-Appellant Rinat Akhmetshin filed this defamation

suit against Browder for commenting on public reports from NBC News and the

1 “JA” refers to the Joint Appendix submitted with the original appeal.

-3-

45

Associated Press addressing Akhmetshin’s ties to Russian intelligence. Compl. Jf 5,

33 (JA7, 12). Akhmetshin did not sue NBC News or any other party besides

Browder, and conceded that the complained acts occurred outside the District.

The District Court granted Browder’s motion to dismiss under Rule 12(b)(2),

finding, inter alia, that the court lacked personal jurisdiction over Browder under the

government contacts exception. Akhmetshin, 407 F. Supp. at 14, 28 (JA377, 411).

The court analyzed each of Browder’s alleged contacts and concluded that they all

fell within the exception, including meetings and public appearances concerning the

Magnitsky Act, appearances relating to the book Red Notice, which “were closely

related to [Browder’s] advocacy of the Magnitsky Act and his lobbying efforts,” id.

at 24 n.15 (JA400), and media appearances in the District which related to his

testimony before the government concerning the Magnitsky Act, and were “intended

to challenge any efforts to repeal that federal law” id. at 24 (JA401). On December

29, 2020, the panel vacated and remanded over Judge Tatel’s dissent. (A1—27).

REASONS FOR GRANTING THE PETITION

I. The Panel Materially Misread the Factual Record

The panel’s core error was its incorrect assumption that Browder’s visits to

the District after 2012 were not “closely tied” to the District’s status as the seat of

national government. (A19). The panel described the “appearance” of the contacts

as described by Akhmetshin, but did not review the actual evidence cataloguing

46

Browder’s visits to the District. The record unequivocally shows not just that all of

the alleged contacts involved Browder’s policy advocacy in the District, but also that

many of the contacts actually did include “direct contact with members, agents, or

instrumentalities of the federal government.” (A20).

The panel assumed that Browder’s post-2012 contacts involved “professional

and social events,” (A3), but the record does not support that presumption. All of

the events and interviews cited by the panel, (A20), concerned the 2012 and 2016

Magnitsky Acts. The panel ignored that Browder’s advocacy for federal government

policy continued with his advocacy for the 2016 Global Magnitsky Act,

notwithstanding that those efforts are described in detail in many of Plaintiff's

submitted exhibits. See, e.g., (JA114, 116-17, 203, 239-40, 257-62, 328-33).

Similarly, Browder fought Akhmetshin’s efforts to remove Magnitsky’s name from

the 2016, rather than 2012, Magnitsky Act. See (JA114, 116-17, 239-40).

The record clearly establishes that Browder’s visits after 2012 continued to be

aimed at influencing federal government policy. See supra, at 3-4. For example,

the panel relied upon Plaintiffs description of a June 2016 interview, (A20), but that

very article describes Browder’s then-current government advocacy efforts in the

District, see (JA239-47), including meetings with Members of Congress regarding

the campaign to repeal the Magnitsky Act. (JA240). As of 2016, Browder was “here

47

in Washington” to attend “meetings with all the top senators and members of the

House to talk about Russia and to talk about Magnitsky.” (JA244).

The panel misread most of the record evidence on which it relied, including

seven public events and ten media interviews cited as part of the panel’s holding.

See (A19-20). As for the events, the panel held that none involved “direct contact

with” the government, (A20), but in fact five of the seven events’ did, including: (1)

an April 2013 reception “marking the passage of the Magnitsky Act” involving

Magnitsky Act Co-Sponsor Rep. Jim McGovern (JA326); (2) an April 2015 panel

discussion including “Members of Congress and other dignitaries” (JA236); (3) an

event the panel called a book event, which was in fact a Hudson Institute event

entitled “The Global Magnitsky Act: Ending Impunity for Human Rights Abusers”

and involved Rep. McGovern and staff from the House Foreign Relations

Committee (JA203); (4) an event at the McCain Institute involving three members

of Congress?; and (5) the funeral of Magnitsky Act Co-Sponsor Sen. John McCain,

attended by dozens of government officials (JA336).

2 The record is silent as to whether any government officials participated in the other

two events, and the panel erred in presuming that none did.

3 Akhmetshin provided no Exhibit documenting this event below or before this

Court. Given its reliance on the event despite this, the Court may take judicial notice

of the Members of Congress who in fact attended. See Event Summary,

https://www.mccaininstitute.org/events/book-discussion-with-bill-browder/.

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48

With respect to the interviews, according to Plaintiff’s own exhibits, Browder

gave three of them (in July of 2018) while he was out of the District (in any event,

the interviews involved the Magnitsky Acts). See (JA253—55). As for the others, a

2013 interview cited by the panel, (A20), describes Browder’s extensive efforts at

the time to engage with Congress and the Executive Branch. (JA212—21). A 2016

interview, (A20), details Browder’s work (extending into 2016) lobbying Congress

on the Global Magnitsky Act. (JA257-62). The 2017 interviews, (A20), described

contemporaneous testimony Browder gave to the Senate Judiciary Committee

regarding Akhmetshin’s efforts to repeal the Magnitsky Act. (JA248—49). As for

the two 2018 interviews that did occur in D.C., the April interview discussed

Browder’s work promoting Magnitsky Acts around the world and urging U.S.

government action, and the November interview directly discussed implementation

of the Global Magnitsky Act. (JA252, JA256—62).

The panel asserted that Browder’s interviews with media outlets were

insufficiently “tied to the unique character of the District as the seat of national

government,” (A19 (internal quotation marks omitted)), but the interviews

demonstrate that they were part and parcel of Browder’s advocacy efforts. The

interviews that Browder gave in the District occurred here because the District is the

seat of national government, and the work that Browder describes in those interviews

is indistinguishable from Vanderbilt University’s “federal policy advocacy work”

49

that was at issue in United Therapeutics Corp. v. Vanderbilt University, 278 F. Supp.

3d 407, 417-19 (D.D.C. 2017).

Absent rehearing, Browder will suffer substantial prejudice on remand. The

District Court carefully evaluated the factual record including considering each of

the contacts described above. See Akhmetshin, 407 F. Supp. at 24-25 (D.D.C. 2019)

(JA400-02). This Court’s mandate that the District Court treat all of the above

events as not involving “direct contacts” with the government, and unrelated to D.C.

role as the seat of national government, would force the District Court to disregard

Plaintiff's own evidence. Supra, at 4-7. No such instruction is necessary. On

rehearing, this Court can reassess the existing record evidence, the appropriate

standard under Environmental Research, and whether jurisdictional discovery is

warranted given Plaintiff's legal burden to establish a basis for exercising

jurisdiction.

II. The Panel’s “Direct Contact” Limitation Conflicts With Binding

Precedents And Would Upend The Purpose Of The Government

Contacts Exception.

Rehearing en banc (or alternatively by the panel) is necessary to avoid a

conflict between the panel’s decision and settled precedents of the Supreme Court

and this Court. The panel’s “direct contact” requirement is contrary to the holding

and purpose of Environmental Research. The panel’s rule also undermines settled

50

law defining the scope of the Petition Clause of the First Amendment, as well as this

Court’s foundational precedents regarding the government contacts exception.

A. The “Direct Contact” Limitation Departs From The Holding And

Purpose Of Environmental Research

The Decision correctly observes that under Environmental Research, “‘entry

into the District of Columbia by nonresidents for the purpose of contacting federal

government agencies is’ the key to the analysis” of the applicability of the

government contacts exception. (A18) (italics in original) (citing Envil. Rsch., 355

A.2d at 813). However, in the next sentence, the panel erroneously states that

Environmental Research restricted the application of the exception to “only direct

contacts with members, agents, or instrumentalities of the federal government.” Jd.

at 17-18.

The panel’s “direct contacts” requirement was not part of the court’s holding

in Environmental Research. Instead, the language appears to derive from a sentence

that, at most, described the court’s rationale for adopting its rule.

To permit our local courts to assert personal jurisdiction

over nonresidents whose sole contact with the District

consists of dealing with a federal instrumentality not only

would pose a threat to free public participation in

government, but also would threaten to convert the District

of Columbia into a national judicial forum.

Envtl. Rsch., 355 A.2d at 813. That statement articulates one scenario in which

jurisdiction would be inappropriate, but the court never purported to define that

51

scenario as the exclusive one to which the exception applies. See (A30—31) (Tatel,

J., dissenting) (“nothing in the court’s opinion—let alone the words my colleagues

emphasize—even hints that the court meant to address such efforts, much less

exclude them from the government contacts exception”).

The panel’s “direct contact” requirement would change the result of

Environmental Research itself. The defendants in Environmental Research had

“direct contacts” with federal officials, but those were not their “only” contacts with

the District—to the contrary, the defendants’ initial contact with the District was

their private contract with a “professional consulting firm incorporated” in the

District, which performed contractual services for defendants in D.C. Envtl. Rsch.,

355 A.2d at 810. Had Environmental Research intended to announce a “sole” and

“direct contact” requirement, the mere existence of a contract for the performance

of services in D.C. would have prevented defendants from satisfying that

requirement. That was not the rule then, and it should not be so now. What matters

is the purpose of defendants’ entry. See Companhia Brasileira Carbureto De Calcio

v. Applied Indus. Materials Corp., 35 A.3d 1127, 1133 (D.C. 2012) (“we have held,

‘entry into the District of Columbia by nonresidents for the purpose of contacting

federal governmental agencies is not a basis for the assertion of in personam

jurisdiction’”); Everett v. Nissan Motor Corp. in U.S.A., 628 A.2d 106, 110 (D.C.

1993) (same). And where a nonresident enters D.C. with such a purpose, no decision

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52

prior to the panel’s had ever held that indirect efforts to influence the government

that occur during such an entry can establish a “persistent course of conduct” for

jurisdictional purposes.

The D.C. Court of Appeals has cautioned against carve outs that, “if applied

loosely, could largely negate the government contacts exception” and cause an

“unrelenting wave of litigation.” Companhia, 35 A.3d at 1133-34 (internal citations

omitted). Yet by artificially constraining the government contacts exception to

“direct contacts,” the Decision would “pose a threat to free public participation in

government, [and] also would threaten to convert the District of Columbia into a

national judicial forum.” Envil. Rsch., 355 A.2d at 813. Under the panel’s rule,

advocates of all stripes who are invited to engage with the U.S. Government in D.C.

would expose themselves to civil liability for doing nothing more than discussing

their meetings and policy objectives with the press. Worse, the “direct contact” rule

means that anything a nonresident does outside of the halls of government while in

D.C. could subject that nonresident to civil jurisdiction here.

A “direct contact” rule will inevitably lead to litigation against unsuspecting

visitors to the District. Because nearly all visitors to D.C. engage in some non-

governmental contacts during their visits, future plaintiffs will be able to establish

jurisdiction by itemizing nonresidents’ social visits and commercial transactions

(travel, meals, entertainment) that take place during visits to engage with the federal

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53

government. That risk is heightened in cases like this one, where jurisdiction is

predicated upon a nonresident’s extraterritorial acts. Such litigation risks deterring

public policy advocates, including U.S. citizens, from traveling to D.C. to engage in

the “public participation” Environmental Research sought to encourage.

The panel appeared to have concerns about interpreting the government

contacts exception in a manner that would “swallow the rule.” (A21). But the

appropriate limiting principle is not an artificial directness requirement—it is the

purpose inquiry supplied by Environmental Research. See 355 A.2d at 813. That

rule does not permit a foreigner to engage in limitless contacts with the District

immune from jurisdiction. Under Environmental Research, visits must be connected

to the District’s “unique” status as the seat of government, and each entry must be

for the purpose of interacting with the government. Jd.

B. The “Direct Contact” Limitation Conflicts With the Supreme

Court’s Noerr-Pennington Doctrine

Since the District of Columbia was established as the seat of national

government, public policy activists from around the world have traveled here to

advocate for the enactment, strengthening, and implementation of federal laws and

regulations. And for decades, citizen and noncitizens alike—from civil rights

advocates in the 1960s to families of victims of terrorist attacks and school

shootings—have coupled their visits to Congress and the Executive with

simultaneous media events to enhance the efficacy of their advocacy. In the 1960s,

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54

the Supreme Court established the principle that indirect efforts to persuade the

federal government, including appeals made via mass media, are inseparable from

advocates’ direct government engagements. See E. R. R. Presidents Conf. v. Noerr

Motor Freight, Inc., 365 U.S. 127, 143 (1961).

The panel acknowledged that the government contacts exception exists to

provide breathing space for the exercise of the right to petition government under

the First Amendment, (A12), yet its “direct contacts” limitation stands in plain

conflict with the Supreme Court’s articulation of that right. In Noerr, the Supreme

Court interpreted the Petition Clause as extending to “a publicity campaign to

influence governmental action.” 365 U.S. at 143. The Supreme Court immunized

railroads from antitrust liability because their activities independent of any

government action—including the use of “speeches, newspaper articles, editorials,

magazine articles, memoranda and” more—were “incidental” to their “efforts to

influence the passage and enforcement of laws” and epitomized a “classic attempt

to influence legislation by a campaign of publicity.” Jd. at 142 (citations and internal

quotation marks omitted). Later precedents recognized that there is no relevant

distinction between indirect and “direct petitioning of government officials, for

Noerr itself immunized a form of indirect petitioning.” Allied Tube & Conduit Corp.

v. Indian Head, Inc., 486 U.S. 492, 503 (1988) Gnternal quotation marks omitted);

see id. at 499, 510 (protecting efforts to influence “governments through direct

-13-

55

lobbying, publicity campaigns, and other traditional avenues of political expression”

including those “directed at the general public”). Likewise, this Court has held that

a “genuine attempt to secure governmental action,” including via advocacy in the

media, is “securely within the protection of Noerr.” Fed. Prescription Serv., Inc. v.

Am. Pharm. Ass’n, 663 F.2d 253, 262, 257 (D.C. Cir. 1981).4

Noerr and its progeny foreclose the panel’s distinction between a

nonresident’s “direct” and “indirect” efforts to petition government. Rehearing is

necessary to avoid divorcing the government contacts exception from the very

constitutional right it is designed to protect.

C. The “Direct Contact” Limitation Conflicts With This Court’s

Seminal Government Contacts Exception Precedents

En banc rehearing is also warranted because the panel’s “direct contact” test

departs from this Court’s prior articulation of the government contacts exception. In

Mueller Brass Co. v. Alexander Milburn Co., 152 F.2d 142, 144 (D.C. Cir. 1945),

this Court considered whether personal jurisdiction could be exercised over a foreign

company that established a D.C. office for the purpose of engaging with the federal

government. Jd. at 143-44. Despite the fact that doing so would necessarily require

numerous transactions, over many years, with private companies and individuals

4 The rationale of Noerr-Pennington extends beyond antitrust cases to the

substantive scope of the Petition Clause right under the First Amendment. Nader v.

Democratic Nat’l Comm., 567 F.3d 692, 696 (D.C. Cir. 2009).

-14-

56

(e.g., signing leases, paying utilities, and hiring employees), Mueller Brass held that

the purpose of those offices exempted those otherwise commercial contacts from the

jurisdictional calculus under the District’s long-arm statute. Id.

Following Mueller Brass, this Court continued to apply the government

contacts exception based upon the purpose of the office, and did not ask whether the

company’s “sole contact” with the District was communication with federal

officials.> In Fandel v. Arabian American Oil Co., 345 F.2d 87 (D.C. Cir. 1965),

this Court applied the government contacts exception to a foreign corporation that

established a local office in the District, despite recognizing that the office engaged

in significant activity apart from interactions with the U.S. Government. Jd. at 89.

Fandel excluded from the jurisdictional calculus the foreign corporation’s

“continuous and ponderable physical presence” in the District, including

maintaining an office with a significant monthly payroll, and engaging in efforts to

maintain relationships with “educational and international organizations, private and

public,” and attending “social” events with other “American oil companies.” Jd. at

88-89. If the defendant oil company’s “social” visits and non-governmental

° The D.C. Court of Appeals has also applied the government contacts exception to

commercial offices established in the District for the purpose of engaging with the

U.S. Government, even where such offices rely upon numerous contacts with non-

governmental entities. See, e.g., Everett, 628 A.2d at 109-10; Hughes v. A.H. Robins

Co., 490 A.2d 1140, 1145 n.4 (D.C. 1985).

-15-

57

contacts were excluded from the jurisdictional calculus in Fandel, there is no

justification for holding Browder accountable for nearly identical types of

contacts—unlike the Arabian American Oil Company, Browder has never operated

an office or any kind of for-profit business in D.C. The panel’s “direct contact” rule

also would effectively overrule many district court decisions that, following Mueller

Brass and Fandel, have applied the government contacts exception to contacts with

D.C.-based trade associations and other non-governmental organizations.°

The panel appears to have deemed all decisions pre-dating Environmental

Research to be irrelevant. (A18). But not only does Fandel remain binding

precedent, it was cited approvingly in Environmental Research in the footnote that

provided the authorities in support of the court’s holding. 355 A.2d at 813 n.9. In

sum, Environmental Research affirmed this Court’s decision in Fandel. This Court

® See, e.g., Groop Internet Platform Inc. v. Psychotherapy Action Network, No. CV

19-1854 (BAH), 2020 WL 353861, at *6 (D.D.C. Jan. 21, 2020) (membership in

non-government entity trade association); United Therapeutics, 278 F. Supp. at 418

(University office that worked “with other non-governmental organizations” and

hosted seminars and a summer internship program); Sierra Club v. Tenn. Valley

Auth., 905 F. Supp. 2d 356, 363 (D.D.C. 2012) (corporate office that included

“continuous and deep involvement with this District — hiring and paying staff,

communicating with citizens and officials here and advocating for [plaintiff's]

interests”); Jung v. Ass’n of Am. Med. Colls., 300 F. Supp. 2d 119, 139 (D.D.C.

2004) (travel to the District for the purpose of fulfilling membership obligations in

non-profit founded to work for reform in medical education); World Wide Minerals

Ltd. v. Republic of Kazakhstan, 116 F. Supp. 2d 98, 105 (D.D.C. 2000) (membership

in various trade associations which held conferences in the District); Inv. Co. Inst. v.

United States, 550 F. Supp. 1213, 1217 & n.6 (D.D.C. 1982) (interactions with non-

governmental organizations, including trade associations).

-16-

58

should grant rehearing en banc to avoid overruling or undermining these

longstanding decisions sub silentio.

CONCLUSION

For the foregoing reasons, Browder respectfully submits that the Petition

should be granted.

January 12, 2021 Respectfully Submitted,

/s/ Michael J. Gottlieb

Michael J. Gottlieb

Stephanie L. Miner

WILLKIE FARR & GALLAGHER LLP

1875 K Street, NW

Washington, DC 20006

mgottlieb@willkie.com

Telephone: (202) 303-1000

Facsimile: (202) 303-2000

Counsel for William Browder

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59

CERTIFICATE OF COMPLIANCE

Pursuant to Federal Rule of Appellate Procedure 32(g)(1), undersigned

counsel certifies that this brief:

(i) | complies with the type-volume limitation of 32(a)(7)(B) because it

contains 3,815 words, excluding the parts of the brief exempted by

Rule 32(f) and Circuit Rule 32(e)(1); and

(ii) | complies with the typeface requirements of Rule 32(a)(5) and the type

style requirements of Rule 32(a)(6) because it has been prepared using

Microsoft Office Word 2013 and is set in Times New Roman font in a

size equivalent to 14 points or larger.

Dated: January 12, 2021 /s/ Michael J. Gottlieb

Michael J. Gottlieb

-18-

60

CERTIFICATE OF SERVICE

Thereby certify that all participants in this appeal are registered CM/ECF users

and that service will be accomplished electronically through the Court’s CM/ECF

system today, January 12, 2021.

Dated: January 12, 2021 /s/ Michael J. Gottlieb

Michael J. Gottlieb

-19-

PLAINTIFF-APPELLANT’S RESPONSE TO THE

PETITION FOR PANEL REHEARING

AND REHEARING EN BANC

61

62

ORAL ARGUMENT HELD ON SEPTEMBER 22, 2020

United States Court of Appeals

for the District of Columbia Circuit

No. 19-7129

RINAT AKHMETSHIN,

Plaintiff-Appellant,

V.

WILLIAM BROWDER,

Defendant-Appellee.

On Appeal from the United States District Court for the District of Columbia in

No. 1:18-cv-01638-EGS, Hon. Emmet G. Sullivan, U.S. District Judge

PLAINTIFF-APPELLANT’S RESPONSE TO THE PETITION

FOR PANEL REHEARING AND REHEARING EN BANC

MICHAEL TREMONTE

ALEXANDRA G. ELENOWITZ-HESS

SHER TREMONTE LLP

90 Broad Street, 23rd Floor

New York, New York 10004

(212) 202-2600

(fax) 212-202-4156

mtremonte@shertremonte.com

ahess@shertremonte.com

Counsel for Plaintiff-Appellant

g COUNSEL PREss, LLC (202) 783-7288 * (888) 277-3259

63

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rules 15(c)(3) and 28(a)(1), Akhmetshin submits this

Certificate as to Parties, Rulings, and Related Cases.

1. Parties, Intervenors, and Amici Curiae

Petitioner is William Browder, who is the Defendant-Appellee in this case.

Respondent is Rinat Akhmetshin, who is Plaintiff-Appellant in this case.

2. Ruling Under Review

The ruling at issue is the panel’s decision in Akhmetshin v. Browder, No. 19-

7129 (D.C. Cir. Dec. 29, 2020) (A1-27).

3. Related Cases

This case has not previously been before this or any other court. Counsel for

Appellant are not aware of any related cases within the meaning of D.C. Circuit Rule

28(a)(1)(C).

64

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......c cc cecccecsessssseesceseescesecsesesenseeneescenessceaeseseneeseeneraees iv

INTRODUCTION 00... eeccscesscssccseeenneececsnecanesneceesaecenecseesaeseseceeeseesaeseaseeeesseesaeeeneneees 1

LEGAL STANDARD... cecssesccscescesccescessesccssesecscecessceseeseesesseesaceceeseseseseesseneeeeenes 2

ARGUMENT. ........ccccscssscsccsssesscescessecscccseessesssecaneeecseseaeeeesaeeenecaneneeeseseaseneeeseseneeaneneees 3

I. THE COURT SHOULD DENY BROWDER’S PETITION FOR

REHEARING EWN BANC... cccccccscsssesscssessesecssesseesestecoeeseeaneseeneneeceesseeaneeeeneneeas 3

A. The Panel Decision Was Correct Under Applicable Law...................+ 3

1. The Panel Majority Applied the Government Contacts

Exception Consistent with the District of Columbia’s and

This Court’s Precedentt..........ccccessssssesessceseesseesseeseseseseceeeeeeeeenes 3

2. Browder’s Argument Regarding the Noerr-Pennington

Doctrine Should Be Deemed Waived .............eecesseeeseeeseeeeeeeneees 8

3. Even if the Argument Is Not Waived, the Noerr-Pennington

Doctrine Is Not Applicable to This Case .............cccesesseeseeseees 9

B. The Petition Does Not Otherwise Present a Question of

Exceptional Importance Under Federal Law ...............ccsccessseseseeeseneees 12

1. An En Banc Court Cannot Resolve the Remaining

State Law Question ..........c:cccssscccsssseceessesecessseessseeeesssesesesseeeeees 12

2. Resolution of the State Law Question Would Be Premature ...13

3. Browder’s “Slippery Slope” Argument Is Unavailing ............. 14

Il. THE COURT SHOULD DENY BROWDER’S PETITION FOR

PANEL REHEARING ou... eee ccceseeeeseseeeseseeeaeesenesenesesaseneeeeeeeseneneseseeeseeanes 15

i

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE. .........

lil

65

66

TABLE OF AUTHORITIES

Page(s)

Cases

Al Hela v. Trump,

972 F.3d 120 (D.C. Cir. 2020).........ccecccssesssscssscessseseeesesesssesseseseseseseessessneeenes 14

Allied Tube & Conduit Corp. v. Indian Head, Inc.,

486 U.S. 492 (1988)........cccssccssccsssessscsssecseecssecsesesseecssecsnesesesessecseesenesenees 10, 11

Andrx Pharm., Inc. v. Biovail Corp. Int'l,

256 F.3d 799 (D.C. Cir. 2001)........ccccesecssccsssesstesssecsseeseesseesscessseesseesseeesesensnes 9

Banneker Ventures, LLC v. Graham,

798 F.3d 1119 (D.C. Cir. 2015)... ccc cecccsscssscessseseeeseeecesecsseeseeesesecsnessneesees 10

Barwick v. U.S., Dep’t of Interior,

No. 89-5478, 1991 WL 65477 (D.C. Cir. Mar. 21, 1991)... eeeeseeseeneees 13

Bechtel & Cole v. Graceland Broad. Inc.,

18 F.3d 953 (D.C. Cir. 1994)... ccccccscsssesssesssscessseseecseseseneseeesseeseeeseseesnessneees 4

Chaidez v. United States,

568 U.S. 342 (2013)... cesccssccsstecssecssecsseesseecseessseesseesseceseeeseesseessseeeseseesseseneees 9

Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n,

923 F.3d 1141 (D.C. Cir. 2019)... cececcecsceseeesseeseesseseeeeenseseesaeesneseeenesenes 15

Companhia Brasileira Carbureto De Calcio v. Applied Indus. Materials Corp.,

35 A.3d 1127 (D.C. 2012) ooo. ccccscssessecscessecsecesessresreeeeeseessneneseseeeaeeeneeeneess 4

Companhia Brasileira Carbureto de Calicio v. Applied Indus. Materials Corp.,

640 F.3d 369 (D.C. Cir. 2011)... ec ececsceeseceseceeseceseeeseeeseeeseeseseeeseeeeeneeeneeeaes 13

Crane v. Carr,

814 F.2d 758 (D.C. Cir. 1987).....cccccccccssscscssccsssecssesesssecssaeecsssessseseseneessaees 5, 14

iV

67

CTS Corp. v. E.P.A.,

759 F.3d 52 (D.C. Cir. 2014)... ccccccsccssccssecssscesesesseeseeesssecsesesesesesesenesseeesaes 10

Envt'l Res. Int’l, Inc. v. Lockwood Greene Engineers, Inc.,

355 A.2d 808 (D.C. 1976) .....eccescessessccssccsecsccssesssecessseseesesssessseseseseneessessneees 4

Everett v. Nissan Motor Corp. in U.S.A.,

628 A.2d 106 (D.C. 1993) .....eceeccsscssscssscssecsscssssesseesesesesessesesesesesesesesstessnsees 6

Fandel v. Arabian Am. Oil Co.,

345 F.2d 87 (D.C. Cir. 1965) 0... ccescssssecesecsssceseeceseecssecesseseessseessnees 5, 6, 7

IGEN Int'l, Inc. v. Roche Diagnostics GmbH,

335 F.3d 303 (4th Cir. 2003) ..........cccescssscsssscssscesesesseesceessessssessseseseesseseneesnes 10

In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Litig.,

751 F.3d 629 (D.C. Cir. 2014)... ccecccesecssecscscssesesseeseseseseseseseeesesesesesseessneees 2

Jenkins v. Tatem,

795 F.2d 112 (D.C. Cir. 1986)........ccceccsstesssscssscsseceseseseseseeesesessseeeseseseessesensees 2

Layug v. Barr,

No. 91-5232, 1992 WL 311224 (D.C. Cir. Oct. 14, 1992) oo. eee 3,15

McKesson v. Doe,

141 S.Ct. 48 (2020)........ccccscsesesssecsseessecsseeeseeeseeeeseecesceseeesseeseusesesesesesssessneesnes 12

Mueller Brass Co. v. Alexander Milburn Co.,

152 F.2d 142 (D.C. Cir. 1945)... ccecccsssesseesssessecssecseeecseesssecseesseeseeeeeees 5,6

Nader v. Democratic Nat. Comm.,

567 F.3d 692 (D.C. Cir. 2009)........ccsccssscsssesssssssecssssesecesesessesssessessecnseesneeses 10

Octane Fitness, LLC v. ICON Health & Fitness, Inc.,

572 U.S. 545 (2014)... ccccccccssccssecsssecsseeesseeecseesssesecseeseseuecenseseseneceeeeesaneres 8,9

Prof’! Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc.,

508 U.S. 49 (1993).....ccsccssscsssccssesssecseecseecseessseecuecseesseeesessseesseeesseeeseeesanesenes 11

68

Rose v. Silver,

394 A.2d 1368 (D.C. 1978)... ceeeccseccssscessseesscessteseesseseecseceensesessaceeteseeeneeenes 13

Steinberg v. Int’l Criminal Police Org.,

672 F.2d 927 (D.C. Cir. 1981)... ceceessccsesseceeecseseseseresceeseeseneeeseseeeneeeneeenenss 7

United States House of Representatives v. Mnuchin,

969 F.3d 353 (D.C. Cir. 2020)... cee cecscccsesseeseeeseeseceeresceeneecsteneeeseesseeeneesneaes 2

United States v. Naranjo,

254 F.3d 311 (D.C. Cir. 2001)... ee ceseseesscsseeseceseceseesseeseceeesseseceeeseseesseees 9

United States v. Philip Morris USA Inc.,

566 F.3d 1095 (D.C. Cir. 2009)... cccccssscceseeseesesseeeeeeseesneecacesessseeseeeeneneees 11

United States v. Philip Morris USA, Inc.,

337 F. Supp. 2d 15 (D.D.C. 2004)... ce ccccscesssesesssseseeseceeeeeeeseeeeneseneseeenes 11

Whelan v. Abell,

48 F.3d 1247 (D.C. Cir. 1995)... ceccscsscsssesecssecereseceseesseeenseseeeseseneeeeeneeenes 11

Statutes

D.C. Code § 13-423 (a)(4) ...cceccsccsscssecssecsscssecsecseecscessesesesseccseeeecseeceseeneessesaneseeesaeeaeees 3

Rules

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INTRODUCTION

William Browder is an American-born financier who renounced his American

citizenship to avoid paying U.S. taxes, but who regularly avails himself of the

resources of the District of Columbia—appearing in person, on television, and on

radio to tout his financial acumen and enhance his personal brand as an expert on

United States-Russia relations.

Notwithstanding his persistent course of conduct in the District of Columbia,

Browder claims that he enjoys absolute immunity from suit in this District because

all of his contacts here are in some way related to his lobbying for the Sergei

Magnitsky Rule of Law Accountability Act of 2012 (the “Magnitsky Act”), and thus,

by operation of the government contacts exception to the District’s long-arm statute,

his extensive activities in the District count for nothing in the jurisdictional analysis.

The district court erroneously agreed, refused Respondent’s request for jurisdictional

discovery, and granted Browder’s motion based on an erroneous view of the law and

entirely on Browder’s own account of his local contacts. However, on December

29, 2020, the Panel vacated the judgment of the district court, reversed its refusal to

allow jurisdictional discovery, and remanded the matter to allow the district court to

supplement the existing record, and to rule again on Browder’s personal jurisdiction

motion and, if necessary, on Browder’s Rule 12(b)(6) motion to dismiss. On January

12, 2021, Browder filed the instant petition.

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Browder’s petition for rehearing en banc/panel rehearing should be denied as

Browder has failed to identify a basis for this Court’s review. First, he does not cite

any controlling authority that the Panel may have overlooked. There is no question

as to the scope of the government contacts exception to this District’s long-arm

statute: it “consist[s] of direct contact with members, agents, or instrumentalities of

the federal government,” A20. Under this standard, Browder’s repeated travel to

this District to appear on television and radio, give magazine interviews, promote

his book, and attend private events cannot be characterized as government contacts

and “should be included in the jurisdictional calculus.” Jd. Second, it would be

premature to resolve any remaining legal questions raised in the Panel’s decision at

this juncture. Should the district court find on remand (after jurisdictional discovery)

that it has personal jurisdiction under the D.C. long-arm statute, any outstanding

constitutional question will be moot.

LEGAL STANDARD

It is well-established that “[r]ehearing en banc should be rare,” United States

House of Representatives v. Mnuchin, 969 F.3d 353, 357 (D.C. Cir. 2020) (Griffith,

J., dissenting from denial of en banc), and the standards for granting an en

banc proceeding “are demandingly high,” Jenkins v. Tatem, 795 F.2d 112, 114 (D.C.

Cir. 1986). Such review “is reserved for ‘question[s] of exceptional importance’ or

to preserve ‘uniformity of the court’s decisions.’” In re Long-Distance Tel. Serv.

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Fed. Excise Tax Refund Litig., 751 F.3d 629, 636 (D.C. Cir. 2014) (quoting Fed. R.

Civ. P. 35(a)). Similarly, panel rehearing is not appropriate in the absence of “points

of law or fact . . . the court previously overlooked or misapprehended.” Layug v.

Barr, No. 91-5232, 1992 WL 311224, at *1 (D.C. Cir. Oct. 14, 1992) (quoting Fed.

R. App. P. 40(a)(2)).

ARGUMENT

I. THE COURT SHOULD DENY BROWDER’S PETITION FOR

REHEARING EN BANC

A. The Panel Decision Was Correct Under Applicable Law

1. The Panel Majority Applied the Government Contacts

Exception Consistent with the District of Columbia’s and

This Court’s Precedent

Application of the government contacts exception is “straightforward with

respect to the matters at issue in this case,” A17; namely, Browder’s conduct in this

District should be factored into the “persistent course of conduct” jurisdictional

calculus under D.C. Code § 13-423(a)(4) unless it “consist[s] of direct contact with

members, agents, or instrumentalities of the federal government,” A20. Under this

standard, Browder’s repeated travel to this District to appear on television and radio,

give magazine interviews, promote his book, and attend private events cannot be

characterized as government contacts and “should be included in the jurisdictional

calculus.” A20.

The Panel’s holding is consistent with this Circuit’s and District of Columbia

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precedent. In Bechtel & Cole v. Graceland Broad. Inc., 18 F.3d 953 (D.C. Cir.

1994), a panel of this Court explicitly held that “discretionary” conduct “not

dependent on ‘the unique character of the District as the seat of national government’

... fall[s] outside the protective scope of the government contacts doctrine.” Jd. at

953 (quoting Envt’l Res. Int’l, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d

808, 813 (D.C. 1976)). This holding is consistent with the D.C. Court of Appeals’

decision in Environmental Research, on which it relies, which “made it clear that

the government contacts exception applies when nonresidents’ ‘so/e contact with the

District consists of dealing with a federal instrumentality.’” A17 (quoting Envt’l

Res. Int'l, 355 A.2d at 813); see also Companhia Brasileira Carbureto De Calcio v.

Applied Indus. Materials Corp., 35 A.3d 1127, 1131 (D.C. 2012) (same).

Here, Browder’s appearances on television and radio, his participation in

magazine interviews, and his attendance at social and business events in this District

were the very definition of “discretionary.”! The fact that Browder may also have

! A review of the entirety of the governments contacts case law in both this Circuit

and in the D.C. Court of Appeals reveals that the only types of “uniquely

governmental activities” that courts in this Circuit have found to qualify under the

government contacts doctrine are: (1) directly lobbying federal departments or

agencies; (2) being a member of a federal department or agency; (3) attending

meetings at, or communicating with, federal departments and agencies;

(4) contacting an attorney related to a company’s business or litigation with a federal

agency; (5) keeping an office in the District for the sole purpose of maintaining

contact with federal departments and agencies; (6) accepting money or business

contracts from a federal department or agencies; or (7) membership in a trade

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had meetings with federal departments or agencies in the same trip that he engaged

in such “discretionary” conduct does not insulate these activities from the

jurisdictional analysis. Rather, as the Panel did, a court must consider each contact

with the District individually, including over the course of a single trip to the District.

See, e.g., Crane v. Carr, 814 F.2d 758, 764 (D.C. Cir. 1987) (remanding case for

jurisdictional discovery so plaintiff could “seek a more detailed delineation of

[defendant’s] activities in the District”). Otherwise, all conduct in the District, no

matter how injurious, could be immunized by any direct contact with a government

instrumentality—which is exactly what Browder is trying to do here.

Browder erroneously argues that the Panel’s decision “departs from this

Court’s prior articulation of the government contacts exception” pre-dating

Environmental Research, Pet. 14 (citing Mueller Brass Co. v. Alexander Milburn

Co., 152 F.2d 142 (D.C. Cir. 1945) and Fandel v. Arabian Am. Oil Co., 345 F.2d 87

(D.C. Cir. 1965)). In particular, he contends that these earlier cases “appl[ied] the

government contacts exception based upon the purpose of [the corporation-

defendant’s] office [in the District], and did not ask whether the company’s ‘sole

contact’ with the District was communication with federal officials.” Pet. 15. The

Panel Majority soundly rejected this tendentious gloss, holding that such reasoning

association or group located in the District. See Appellant Br. at 18-19 & nn. 5-11

(collecting cases).

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“would mean that a defendant who has even a single contact with the federal

government in support of a policy agenda may then exclude al/ contacts with the

District that can be somehow construed as efforts to advance that agenda.” A20-21.

Browder provides no coherent argument to the contrary.

The parallel that Browder attempts to draw between himself and the

corporation-defendants in Fandel and Mueller Brass cannot withstand scrutiny. In

those cases, the defendants’ reason (or “purpose”’) for existing was to “gather[]

information from Government departments and agencies.” Mueller Brass Co., 152

F.2d at 143; see also Fandel, 345 F.2d at 88-89 (finding no general jurisdiction

where the purpose of defendant’s office in the District was to act as “its state

department” regarding “the Middle East generally and Saudi Arabia in particular’’);

Everett v. Nissan Motor Corp. in U.S.A., 628 A.2d 106, 110 (D.C. 1993) (finding no

general jurisdiction where defendant’s activities in the District were conducted

“solely for the purpose of gathering information from the federal government”)

(citation omitted). Browder cannot credibly maintain that his sole reason for existing

is to petition the federal government. Moreover, the parties in those cases were

corporations; Browder cites no case supporting applying this logic to individuals.

Additionally, Browder conspicuously omits that the cited cases were about

the imposition of general jurisdiction, not specific jurisdiction. See Mueller Brass

Co., 152 F.2d at 144 (evaluating whether defendants’ activities “constitute[d] doing

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business in the District of Columbia in the jurisdictional sense”’); Fandel, 345 F.2d

at 88-89 (same). By contrast, here, the issue is whether Akhmetshin has

demonstrated that Browder has engaged in a “persistent course of conduct” in the

District under the long-arm statute. Unlike general jurisdiction, establishing a

“persistent course of conduct” is “not a particularly high bar.” A24; see also

Steinberg v. Int’l Criminal Police Org., 672 F.2d 927, 931 (D.C. Cir. 1981) (holding

that “the ‘persistent course of conduct’ to which the statute refers denotes

connections considerably less substantial than those required to establish general,

‘all purpose’ jurisdiction on the basis of ‘doing business’ in the forum”).

Akhmetshin has more than met this requirement.

Equally spurious is Browder’s argument that his non-governmental activities

were not discretionary and only occurred in the District “because the District is the

seat of national government.” Pet. 7. As Browder notes in his petition, he is more

than capable of engaging in interviews “while he [i]s out of the District,” and, as a

result, these discretionary activities must be factored into the jurisdictional analysis.

Id. (emphasis in original).

Therefore, as the Panel’s decision is consistent with this District’s and this

Circuit’s precedents, Browder’s petition should be denied. As both the Panel

Majority and Dissent agree—and as Browder does not dispute—there is no

“controlling authority postdating Environmental Research International that applies

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the government contacts exception to conduct not involving direct contact with

members of the federal government or government agencies.” A31 (citing A18).

This alone is a sufficient basis on which to deny Browder’s petition.

2. Browder’s Argument Regarding the Noerr-Pennington

Doctrine Should Be Deemed Waived

Browder argues for the first time that the Noerr-Pennington doctrine? should

“defin[e] the scope of the Petition Clause of the First Amendment . . . regarding the

government contacts exception.” Pet 8-9. This argument should be deemed waived

and, in any event, is incorrect as a matter of law, see infra.

There is no merit to Browder’s novel assertion of a “plain conflict” between

the Panel’s opinion concerning the government contacts exception’s “direct contacts

limitation” and the Noerr-Pennington doctrine’s supposed mandate “that indirect

efforts to persuade the federal government, including appeals made via mass media,

are entitled to the same protections as advocates’ direct government engagements.”

Pet. 2 (emphasis omitted); see also id. 12-14. However “plain” this conflict may

now be to Browder, he failed to raise it before the district court or the Panel of this

Court. See JA? 26-78 (Browder’s motion to dismiss); Appellee’s Br. As this Circuit

2 The Noerr-Pennington doctrine immunizes parties “from antitrust liability for

engaging in conduct . . . aimed at influencing decisionmaking by the government.”

Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 555-56 (2014).

3 “JA” refers to the Joint Appendix submitted with the original appeal.

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has “a well-established rule against allowing parties to initiate new claims on

appeal,” the Court should decline to consider Browder’s new legal argument. United

States v. Naranjo, 254 F.3d 311, 313 (D.C. Cir. 2001); see also Chaidez v. United

States, 568 U.S. 342, 358 n.16 (2013) (declining to consider petitioner’s new

arguments, inter alia, because she did not “adequately raise them in the lower

courts,” but “[o]|nly [in] her petition for rehearing en banc”).

3. Even if the Argument Is Not Waived, the Noerr-Pennington

Doctrine Is Not Applicable to This Case

Even if the Court is inclined to consider Browder’s Noerr-Pennington

argument, the doctrine is inapplicable for three reasons.

First, and most basically, the Noerr-Pennington doctrine only applies to

antitrust cases. As this Circuit has explained, while the doctrine “is rooted in First

Amendment law,” it “rests ultimately upon a recognition that the antitrust laws,

tailored as they are for the business world, are not at all appropriate for application

in the political arena.” Andrx Pharm., Inc. v. Biovail Corp. Int’l, 256 F.3d 799, 817

(D.C. Cir. 2001) (emphasis added). The Supreme Court has similarly emphasized

that, under the Noerr-Pennington doctrine, “defendants are immune from antitrust

liability.” Octane Fitness, LLC, 572 U.S. at 555-56 (emphasis added).

Browder cites no precedent for an all-purpose application of this doctrine

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outside of the antitrust context, except in a single footnote.* Nor could he; as a panel

of this Court has stated, “[t]o our knowledge, [the D.C. Circuit] ha[s] never applied

the Noerr-Pennington doctrine, which arose in the context of the antitrust laws, to

bar liability for common law torts,” such as defamation. Banneker Ventures, LLC v.

Graham, 798 F.3d 1119, 1137 n.8 (D.C. Cir. 2015). Therefore, as this action does

not involve antitrust liability, the Noerr-Pennington doctrine and its interpretation

of the Petition Clause are irrelevant.

Second, even if the Noerr-Pennington doctrine could be asserted in this

action, it is unconnected to the question of personal jurisdiction. As both this Circuit

4 In that footnote, Browder conclusorily states that “[t]he rationale of Noerr-

Pennington extends beyond antitrust cases to the substantive scope of the Petition

Clause right under the First Amendment.” Pet. 14 n.4. As an initial matter, the Court

should not consider this argument because an oblique “footnote in [an] opening brief

... 18 no place to make a substantive legal argument on appeal; hiding an argument

there and then articulating it in only a conclusory fashion results in forfeiture.” C7S

Corp. v. E.P.A., 759 F.3d 52, 64 (D.C. Cir. 2014). Moreover, none of the cases cited

by Browder supports extending the Noerr-Pennington doctrine beyond the antitrust

context. See, e.g., Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492,

499, 503 (1988) (holding that “[c]oncerted efforts to restrain or monopolize trade by

petitioning government officials,” including “a form of indirect petitioning,” are

“protected from antitrust liability under the doctrine established by Noerr’)

(emphasis added) (internal quotation marks omitted); Nader v. Democratic Nat.

Comm., 567 F.3d 692, 696 (D.C. Cir. 2009) (discussing “as an abstract matter”

whether “common law torts of malicious prosecution and abuse of process” might

fall under the Noerr-Pennington doctrine). To the extent that other circuits have

expanded the Noerr-Pennington doctrine to include “business torts” such as

“malicious prosecution, tortious interference with contract, tortious interference

with prospective economic advantage, and unfair competition,” see, e.g., IGEN Int'l,

Inc. v. Roche Diagnostics GmbH, 335 F.3d 303, 310 (4th Cir. 2003), such exceptions

would not be applicable here.

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and the Supreme Court have explained, the Noerr-Pennington doctrine is a defense

to liability, not to a court’s exercise of personal jurisdiction. See, e.g., Prof’l Real

Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56 (1993)

(explaining that, under the Noerr-Pennington doctrine, “[t]hose who petition

government for redress are generally immune from antitrust liability”); Whelan v.

Abell, 48 F.3d 1247, 1259 (D.C. Cir. 1995) (stating “the Noerr-Pennington defense”

is “a defense that [the defendant] may prove at trial”). Browder cites no case to

support grafting a merits-based, “fact-intensive inquiry that can only be resolved at

trial” onto a court’s jurisdictional analysis. United States v. Philip Morris USA, Inc.,

337 F. Supp. 2d 15, 26-27 (D.D.C. 2004).°

Third, the Noerr-Pennington doctrine does not apply to Browder for the same

reason that the government contacts exception does not apply: he is a non-resident

alien who voluntarily disavowed the benefits of U.S. citizenship and, therefore, lacks

standing to cloak himself in the protection of a doctrine “rooted in the Petition Clause

of the First Amendment.” United States v. Philip Morris USA Inc., 566 F.3d 1095,

1123 (D.C. Cir. 2009); see also A36 (“[I]t is far from clear whether the right to

petition the government extends to Browder as a non-citizen.”’).

> Moreover, this assumes that Browder’s contacts are fairly characterized as

“petitioning,” which they should not be. See Allied Tube, 486 U.S. at 507 (stating

Noerr-Pennington doctrine should not “immunize what are in essence commercial

activities simply because they have a political impact”). Any resolution of this issue

would, at a minimum, require jurisdictional discovery.

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Therefore, as the Panel’s decision is consistent with this District’s and this

Circuit’s precedents, the Court should deny Browder’s petition for rehearing en

banc.

B. The Petition Does Not Otherwise Present a Question of Exceptional

Importance Under Federal Law

1. An En Banc Court Cannot Resolve the Remaining State Law

Question

As the Panel correctly held that the government contacts exception is limited

to those who seek to influence federal legislation and policy through direct contacts

with government officials, the only remaining legal question is “whether the

government contacts exception applies to a nonresident alien.” A16; see also A30.

However, as the entire Panel acknowledges, this is purely a question of state law that

cannot be resolved by a federal court. See Al6 (“If the only dispositive legal

question outstanding in this case was whether the government contacts exception

applies to nonresident aliens, certification to the Court of Appeals likely would be

appropriate.”); A35 (stating this question “implicates a potential conflict between

two decisions of the D.C. Court of Appeals—a conflict only that court may resolve”

(emphasis added)). In fact, the Supreme Court recently warned federal courts

against “[s]peculat[ing]” about “novel issues of state law peculiarly calling for the

exercise of judgment by the state courts,” McKesson v. Doe, 141 S.Ct. 48, 51 (2020)

(per curiam) (internal quotation marks omitted), because “the District of Columbia

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Court of Appeals could, at any time, speak to the exact issue presented here [and,

therefore,] anything this Court could decide through the en banc process could be

voided immediately,” Barwick v. U.S., Dep’t of Interior, No. 89-5478, 1991 WL

65477, at *1 (D.C. Cir. Mar. 21, 1991).° Therefore, this Court should deny

Browder’s petition for en banc review.

2. Resolution of the State Law Question Would Be Premature

Even if this Court is inclined to resolve the remaining legal question, it would

be premature to do so at this juncture. As the Panel Majority explained, “the wisest

course for now is to simply assume, without deciding, that the government contacts

exception applies to the contacts of nonresident aliens” because “there are other

grounds that might dispose of this case without any need to determine whether the

government contacts exception applies to nonresident aliens.” A16. In particular,

should the

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