# Rinat Akhmetshin v. William Browder

> Court of Appeals for the D.C. Circuit · April 13, 2021

URL: https://www.frixlaw.com/law-library/cases/4676691

## Case

- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** April 13, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4676691

## How later opinions describe it (automated extraction)

- 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)
- 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’
- stating Noerr-Pennington doctrine should not “immunize what are in essence commercial activities simply because they have a political impact”

## Opinion text

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 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

-17-
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
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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
D.C. Circuit Rule 15(C)(3) wo... ccsscsssecssssecsssccssnecsseeecseeeceseeessnesesaeessesecsseeessnesesarecsees i
D.C. Circuit Rule 28(a)(1) ......ccccccscccssccesssecsssecsseecesasesseeeceseeesaeeceeaeesseueseseeeeaneceeaeecsans i
Fed. R. App. P. 40(a)(2)......:ccccccccssccssseccsssecsssecssnecsseecesseeceseeesatessseeecsaeesesaeessnesenenecsaes 3
Fed. R. Civ. P. 35a)... ccceesccssccesecesccesceessneeseecsceseseeeaesasessaeesseeeneceseeseeseneeeneneeaneneeess 3

Vi
69

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.
70

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.
71

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
3
72

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

4
73

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).

5
74

“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
15

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
76

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.
8
7

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
78

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.

10
79

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.

11
80

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

12
81

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 district court find on remand (after jurisdictional discovery) that it has
personal jurisdiction under the D.C. long-arm statute, the constitutional question will
be moot. This holding is consistent with this Circuit’s precedent that “[c]ourts

should not decide constitutional questions when alternative grounds for decision are

6 While the Panel Dissent is correct that this Court has “previously certified a
different question to the D.C. Court of Appeals due to the very uncertainty that Rose
v. Silver, 394 A.2d 1368 (D.C. 1978)] created,” the decision to certify was made by
a panel of this Court, not during en banc review. A35 (discussing Companhia
Brasileira Carbureto de Calicio v. Applied Indus. Materials Corp., 640 F.3d 369,
371 (D.C. Cir. 2011)).

13
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fairly available.” Al Hela v. Trump, 972 F.3d 120, 143-44 (D.C. Cir. 2020)
(collecting cases); see also Holmes v. F.E.C., 823 F.3d 69, 70 n.1 (D.C. Cir. 2016)
(noting that the Court previously remanded case so that the district court could
develop “the factual record necessary for en banc review”). Therefore, the Court
should deny Browder’s petition for en banc review.
3. Browder’s “Slippery Slope” Argument Is Unavailing

In an attempt to avoid this Circuit’s clear precedents, Browder warns that the
Panel’s decision presents a slippery slope. In particular, he contends, “[b]ecause
nearly all visitors to D.C. engage in some nongovernmental 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 government.”
Pet. 11-12 (emphasis in original). His purported concern is misplaced. The very
purpose of the long-arm statute’s “persistent course of conduct” standard is to “filter
out cases in which the inforum impact is an isolated event and the defendant
otherwise has no, or scant, affiliations with the forum.” Crane, 814 F.2d at 763. But
that is not the situation here: in this case, Browder availed himself of the resources
of the District of Columbia, appearing repeatedly in person, on television, and on
radio to promote his personal brand, strengthen his professional and social network,

and protect his substantial personal fortune. This was no “isolated event;” as

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Browder himself bragged in 2018, he has “had three careers so far,” including “a
career in Washington.” JA 183; 261.

In essence, Browder is arguing that any of his non-governmental activities in
the District should automatically convert into protected government contacts once
he utters the phrase “Magnitsky Act.” In fact, according to Browder, as long as there
is a theoretical chance that a lawmaker might be in the same room when he is
speaking, happens to watch television at an auspicious moment when he is being
interviewed, or attends the same party, he is engaging in “advocacy efforts.” Pet. 6—
7. The Panel correctly (and soundly) rejected such a nonsensical extension of the
government contacts exception, holding it would “swallow the rule.” A21. Browder
cannot stymie review of his non-government contacts by “uttering magic words.”
Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 923
F.3d 1141, 1144 (D.C. Cir. 2019) (Pillard, J., dissenting from denial of rehearing en
banc). He should, therefore, be subject to this District’s personal jurisdiction.

I. THE COURT SHOULD DENY BROWDER’S PETITION FOR PANEL
REHEARING

For the reasons stated above, Browder has failed to state “any points of law
or fact . . . the court previously overlooked or misapprehended.” Layug, 1992 WL
311224, at *1. To the extent there are any factual disputes about Browder’s non-

governmental activities, see Pet. 7, they can be resolved by the district court

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following jurisdictional discovery. See A25—26. Therefore, Browder’s petition for
panel rehearing should also be denied.

CONCLUSION

For the foregoing reasons, Browder’s petition should be denied.

Dated: February 3, 2021
New York, New York

/s/Michael Tremonte
Michael Tremonte
Alexandra G. Elenowitz-Hess

Sher Tremonte LLP

90 Broad Street, 234 Floor
New York, New York 10004
(212) 202-2600

(fax) 212-202-4156
mtremonte@shertremonte.com
ahess@shertremonte.com

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CERTIFICATE OF COMPLIANCE
This brief complies with Rule 32(a)(7)(B) because it contains 3,768 words,
excluding the parts exempted by Rule 32(f) and Circuit Rule 32(c)(1). This brief
also complies with Rule 32(a)(5)-(6) because it is prepared in a proportionally

spaced typeface using Microsoft Word in 14-point Times New Roman font.

Dated: February 3, 2021 /s/Michael Tremonte
Michael Tremonte

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CERTIFICATE OF SERVICE
I, Michael Tremonte, hereby certify that the foregoing was served on all
counsel of record in case number 19-7129 through the electronic filing system

(CM/ECF) of the U.S. Court of Appeals for the District of Columbia Circuit.

/s/Michael Tremonte

Michael Tremonte

Sher Tremonte LLP

90 Broad Street, 23"! Floor
New York, New York 10004
(212) 202-2600

(fax) 212-202-4156
mtremonte@shertremonte.com

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4676691. Public record. Not legal advice.