Broidy Capital Management LLC v. Nicolas Muzin

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 26, 2021 Decided September 3, 2021

No. 20-7040

BROIDY CAPITAL MANAGEMENT LLC AND ELLIOTT BROIDY,

APPELLEES

v.

NICOLAS D. MUZIN, ET AL.,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-00150)

Stephen J. Obermeier argued the cause for appellants.

With him on the joint briefs were Jeremy J. Broggi, Krystal B.

Swendsboe, Jeffrey A. Udell, Alison L. Andersen, Laura E. Zell,

and Charles S. Fax.

Shannen W. Coffin argued the cause for appellees. With

him on the brief were Filiberto Agusti and Linda C. Bailey.

Michael J. Baratz entered an appearance.

Before: PILLARD and WALKER, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

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PILLARD, Circuit Judge: Defendants-Appellants, public

relations contractors who are citizens and residents of the

United States, appeal the district court’s order denying their

claim of immunity from suit for alleged violations of U.S. law

in the course of their work here on behalf of the State of Qatar.

Business executive and activist Elliott Broidy and his company

(collectively, Broidy) sued the defendants, claiming that, in

their efforts to discredit Broidy for speaking out against Qatar,

they distributed emails illegally hacked from Broidy’s private

servers. Without acknowledging any involvement in such a

scheme, the defendants argue that Broidy’s allegations that

they had acted on Qatar’s behalf mean they are shielded by

Qatar’s foreign sovereign immunity. All agree that the Foreign

Sovereign Immunities Act (FSIA) by its terms does not apply,

but the defendants say residual common-law immunity protects

them as agents of Qatar acting at its behest. Broidy argues that

the district court’s nonfinal judgment is not immediately

appealable and that, in any event, the defendants lack

immunity.

The jurisdictional question is close, but we believe we

have jurisdiction over the appeal based on the defendants’

colorable claim of immunity. On the merits, we affirm the

district court’s order denying immunity. The State of Qatar has

not said that the conduct challenged as unlawful was at its

behest nor has it urged the United States to recognize the

defendants’ immunity. The United States Department of State,

for its part, has never suggested that the defendants are immune

as agents of Qatar. In the absence of any such

acknowledgement or suggestion, a private party claiming

foreign sovereign immunity bears a heavy burden. The

defendants here are U.S. citizens and a U.S. firm sued in their

private capacities by U.S. plaintiffs for violations of U.S. and

California law within the United States. We hold they have

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failed to establish that any foreign official immunity shields

them from further proceedings and ultimate liability.

BACKGROUND

Because we review the district court’s decision on a

motion to dismiss, we draw much of the background from

Broidy’s amended complaint. See Kareem v. Haspel, 986 F.3d

859, 865-66 & n.7 (D.C. Cir. 2021). But where, as here, “the

motion is based on a claim of foreign sovereign immunity,”

which, if meritorious, “provides protection from suit and not

merely a defense to liability,” the court “must engage in

sufficient pretrial factual and legal determinations to satisfy

itself of” jurisdiction. Belhas v. Ya’alon, 515 F.3d 1279, 1281

(D.C. Cir. 2008) (citation omitted). We rely for the most part

on the complaint, on which the defendants have chosen to rest,

and make limited reference to a consulting agreement of record

in a California case arising from the same events.

Broidy describes himself as “a prominent business and

civic leader who has actively served in leadership roles in U.S.

government advisory groups, Jewish organizations, and the

Republican Party for decades.” Amended Compl. ¶ 45, J.A.

23. In recent years, Broidy has urged the United States to

oppose the State of Qatar’s alleged funding and harboring of

terrorists and to support the efforts of Qatar’s neighbors to

isolate it economically. “Beginning in early 2017,” he

explains, he “became a vocal critic of Qatar’s support for

terrorists and friendly relationship with Iran, which he sees as

a major threat to the security of the United States and its allies.”

Id. ¶ 46, J.A. 24. And Broidy has had powerful audiences for

his advocacy, including “directly interact[ing] with” then-

President Donald Trump. Id. ¶ 45, J.A. 23.

Broidy alleges that Qatar sought to counter his advocacy.

It engaged in “a multi-million dollar dark money effort to

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recruit lobbyists and influencers to polish Qatar’s public image

within the United States.” Id. ¶ 50, J.A. 24. Broidy dubs that

effort the “Qatari Enterprise.” Id.; see also id. ¶ 2, J.A. 13.

That is where the defendants enter the picture: Nicholas D.

Muzin is a former Republican legislative aide and Trump

campaign staffer; Joseph Allaham is a former restauranteur;

Stonington Strategies, LLC, is a public relations consulting

firm those two men co-founded; and Gregory Howard is a

media placement expert at another public strategy firm. Qatar

allegedly paid them millions in hopes of rehabilitating its

image with “the Republican, American Jewish community and

other conservative supporters of Israel.” Id. ¶ 51, J.A. 25.

Broidy acknowledges the lawfulness of the defendants’

initial efforts, including their outreach to relevant stakeholders.

But, Broidy alleges, “Muzin’s and Allaham’s efforts . . . were

largely ineffective, in part because of Mr. Broidy’s actions to

undercut any efforts by Qatar . . . to change the minds of other

Republican Jewish community leaders.” Id. ¶ 71, J.A. 29. That

failure allegedly drove the Qatari Enterprise to turn to lawless

actions to silence Broidy. The Enterprise retained a

cybersecurity firm, Global Risk Advisors LLC, “to coordinate

an offensive cyber and information operation against” Broidy

and his company, “including by infiltrating [their] computer

networks and obtaining unauthorized access to Google email

accounts of United States persons associated with [Broidy]”

such as his spouse and executive assistant. Id. ¶ 79, J.A. 30-

31.

Muzin and Allaham’s alleged role was to distribute hacked

information. They collaborated with Howard “to place

information illegally obtained from the hacking in the hands of

journalists, media organizations, and public relations

professionals.” Id. ¶ 116, J.A. 39. Broidy alleges that their

purpose in “disseminating emails and documents hacked and

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stolen from Broidy to the U.S. media” was “to destroy Broidy’s

public standing,” and with it his ability to influence public and

presidential opinion on Qatar. Id. ¶ 52, J.A. 25.

In January 2019, Broidy and his company, Broidy Capital

Management, LLC, sued Muzin, Allaham, Howard, and

Stonington Strategies in the District of Columbia under U.S.

and California law. As amended, his thirteen-count complaint

asserts violations of the Racketeer Influenced and Corrupt

Organizations Act, Stored Communications Act, Computer

Fraud and Abuse Act, Defend Trade Secrets Act, and

California law.

This is not Broidy’s first lawsuit over this general course

of events. First, in early 2018 in the Central District of

California, Broidy sued each of the defendants named here

except Howard, along with Global Risk Advisors, the State of

Qatar, and Qatari officials. See Broidy Cap. Mgmt., LLC v.

State of Qatar, 982 F.3d 582, 586 (9th Cir. 2020). That court

dismissed Broidy’s claims against Qatar for lack of subject-

matter jurisdiction under the FSIA and nixed the remaining

claims against the other defendants for lack of sufficient

contacts with California to support personal jurisdiction. Id. at

586, 596. The Ninth Circuit affirmed. Id.

Broidy also sued two of the defendants’ alleged

coconspirators in separate lawsuits in the Southern District of

New York. One of those defendants, a former U.N. official not

named in the California case, obtained a dismissal based on

diplomatic immunity, which the Second Circuit affirmed. See

Broidy Cap. Mgmt. LLC v. Benomar, 944 F.3d 436, 439-40 (2d

Cir. 2019). In the other New York lawsuit, Global Risk

Advisors successfully argued that Broidy’s complaint lacked

sufficient allegations linking the cybersecurity firm to the hack.

See Broidy v. Glob. Risk Advisors LLC, No. 1:19-cv-11861,

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2021 WL 1225949, at *8-10 (S.D.N.Y. Mar. 31, 2021). In

dismissing the suit, however, the court held that Global Risk

Advisors was not entitled to any form of immunity from suit.

Id. at *5-7.

Shortly after Broidy filed his amended complaint in

federal district court here, the defendants moved to dismiss.

They claimed immunity based on Broidy’s allegations

regarding their relationship to Qatar, a foreign sovereign, and,

alternatively, that the complaint failed to state a legally

adequate claim on its merits. The court granted the motions in

part, dismissing certain claims as legally inadequate, but

rejecting the immunity defense. In this interlocutory appeal,

the defendants challenge only the district court’s denial of

immunity.

The defendants asserted that Broidy’s own allegations that

they acted on behalf of Qatar must be taken as true at the

motion-to-dismiss stage. They emphasized that Qatar’s

foreign sovereign immunity in relation to the same events had

been recently affirmed by the Ninth Circuit, see State of Qatar,

982 F.3d at 586, 596, and contended that if they acted for Qatar

as Broidy alleges they are entitled to conduct-based foreign

official immunity.

The district court rejected the immunity defense. It noted

at the outset that because the defendants are private individuals

and not a foreign state the FSIA does not apply, so any

immunity must arise from the common law. Broidy Cap.

Mgmt. LLC v. Muzin, No. 19-cv-0150, 2020 WL 1536350, at

*5 (D.D.C. Mar. 31, 2020) (citing Samantar v. Yousuf

(Samantar I), 560 U.S. 305, 325 (2010)); see also Lewis v.

Mutond, 918 F.3d 142, 145 (D.C. Cir. 2019). The court

evaluated the defendants’ assertions of immunity under two

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distinct analyses without “resolv[ing] which . . . properly

applies[.]” Broidy Cap. Mgmt., 2020 WL 1536350, at *6.

The district court first sought to ascertain whether the U.S.

Department of State has an established policy to recognize the

defendants’ asserted grounds for immunity, and held it does

not. Id. Relying on the Fourth Circuit’s description of State

Department policy in its decision on remand from the Supreme

Court in Samantar, the district court observed that “U.S.

residents . . . who enjoy the protections of U.S. law ordinarily

should be subject to the jurisdiction of the courts, particularly

when sued by U.S. residents.” Id. (alteration in original)

(quoting Yousuf v. Samantar (Samantar II), 699 F.3d 763, 777

(4th Cir. 2012)). The court also considered and rejected the

defendants’ claim to protection by what they call “derivative”

foreign sovereign immunity. Id. at *6-7. Neither this court nor

the State Department has ever endorsed a derivative foreign

sovereign immunity doctrine for private agents of a foreign

government, the district court noted, and it was unpersuaded by

the analogy the defendants drew to derivative immunity for

private parties acting as U.S. government agents in the

domestic context. Id. at *7. The court described derivative

immunity as materially different in the domestic context from

immunity that might appropriately shield agents under the

direction of a foreign sovereign: “The rationale for domestic

derivate sovereign immunity is that the United States and

agents of the United States have ‘the same interest in getting

the government’s work done.’” Id. (citation omitted). “But,”

the court observed, “the United States does not necessarily

share an interest with the agents of a foreign sovereign, and

those interests will routinely diverge, as they do in this case.”

Id.

The court concluded that, because each of the defendants

is a U.S. resident and citizen facing claims brought by a U.S.

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plaintiff under U.S. domestic law for conduct alleged to have

occurred on U.S. soil, “the State Department would not grant

immunity to these defendants.” Id. at *8.

Second, the district court held that the defendants are not

shielded from Broidy’s claims under the standard for foreign

official immunity set out in section 66(f) of the Restatement

(Second) of Foreign Relations Law of the United States (Am.

L. Inst. 1965) (hereinafter Restatement). The court noted that

the Supreme Court has not decided whether the Restatement

correctly sets out the scope of common-law immunity

applicable to current or former foreign officials, nor have we.

Broidy Cap. Mgmt., 2020 WL 1536350, at *6. It, too, avoided

taking a position on the Restatement standard because whether

it applied would have no effect on the outcome; the defendants

lacked immunity under any standard. Section 66(f) of the

Restatement would afford immunity to “any [] [p]ublic

minister, official, or agent of the state with respect to acts

performed in his official capacity if the effect of exercising

jurisdiction would be to enforce a rule of law against the state.”

Lewis, 918 F.3d at 145 (alterations in original) (quoting

Restatement § 66(f)). The district court held it decisive under

the Restatement test that “Broidy is suing the defendants ‘in

their individual capacities’ and ‘is not seeking compensation

out of state funds.’” Broidy Cap. Mgmt., 2020 WL 1536350,

at *8 (quoting Lewis, 918 F.3d at 147).

Because none of the defendants’ theories supported the

immunity defense, the district court held that it had jurisdiction

and, as relevant here, denied the motion to dismiss insofar as it

asserted immunity.

The defendants promptly moved to certify the immunity

question for interlocutory review under 28 U.S.C. § 1292. The

district court denied the motion. The defendants noticed this

9

appeal. Broidy moved to dismiss the appeal summarily for

want of a final order from the district court. Our motions panel

declined to make a summary ruling, instead referring that

motion to us.

ANALYSIS

We review de novo the district court’s decision denying

the defendants’ motion to dismiss under Federal Rule of Civil

Procedure 12(b)(1) for lack of subject-matter jurisdiction. de

Csepel v. Republic of Hungary, 714 F.3d 591, 597 (D.C. Cir.

2013). On appeal from pleading-stage orders, we ordinarily

“accept the well-pleaded factual allegations as true and draw

all reasonable inferences from those allegations in the

plaintiff’s favor.” See Kareem, 986 F.3d at 865 (quoting

Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015)). But a

defendant claiming sovereign immunity in a motion to dismiss

“bears the burden of proving” they qualify for it. Lewis, 918

F.3d at 145; see also Ivanenko v. Yanukovich, 995 F.3d 232,

236 (D.C. Cir. 2021). And because immunity, where it applies,

requires us to relinquish our jurisdiction over the merits of the

dispute, we “must engage in sufficient pretrial factual and legal

determinations to” adjudicate an immunity claim made in a

motion to dismiss. Belhas, 515 F.3d at 1281 (citation omitted);

see Bolivarian Republic of Venezuela v. Helmerich & Payne

Int’l Drilling Co., 137 S. Ct. 1312, 1324 (2017); Ex parte

Republic of Peru, 318 U.S. 578, 588 (1943).

We begin with our own jurisdiction to hear this appeal,

which Broidy contests, before proceeding to the substance of

the immunity issue.

A.

Our jurisdiction to hear this appeal is a close question. An

order denying a motion to dismiss is typically not an appealable

10

final order. See Lauro Lines s.r.l. v. Chasser, 490 U.S. 495,

498 (1989); Bombardier Corp. v. Nat’l R.R. Passenger Corp.,

333 F.3d 250, 253 (D.C. Cir. 2003); 28 U.S.C. § 1291. But

sovereign immunity, where it applies, protects a sovereign’s

dignitary interests in avoiding suit, not just ultimate liability.

To that end, orders denying colorable claims of sovereign

immunity generally are immediately appealable pursuant to the

collateral order doctrine. See P.R. Aqueduct & Sewer Auth. v.

Metcalf & Eddy, Inc., 506 U.S. 139, 143-44 (1993)

(recognizing immediate appealability of order denying

sovereign immunity as involving important interests separate

from the merits that would be effectively unreviewable on

appeal after judgment); Process & Indus. Devs. Ltd. v. Federal

Republic of Nigeria, 962 F.3d 576, 584 (D.C. Cir. 2020). That

must be so, because if immunity appeals had to await final

judgment on the merits, immunity erroneously denied would

lose its litigation-avoidance component before the error could

be corrected. See Kilburn v. Socialist People’s Libyan Arab

Jamahiriya, 376 F.3d 1123, 1126 (D.C. Cir. 2004).

At the same time, immediate appealability is strong

medicine that is harmful when misused. Collateral order

appeals contravene strong judicial-efficiency interests

supporting the final judgment rule. See Will v. Hallock, 546

U.S. 345, 349-50 (2006). To prevent baseless appeals that

delay and potentially obstruct just claims, courts generally

confine interlocutory immunity appeals to legal questions of at

least colorable merit that are separate and distinct from the

underlying claims. See Johnson v. Jones, 515 U.S. 304, 317

(1995) (limiting immunity appeal to legal questions); Process

& Indus. Devs., 962 F.3d at 583-84 (allowing appeal of

colorable claim of immunity).

Broidy acknowledges that denials of foreign sovereign

immunity are typically immediately appealable but contends

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that we lack jurisdiction here for two interrelated reasons.

First, he asserts that immediate appeals from orders denying

foreign sovereign immunity are available only to foreign

states—not individuals sued as a foreign state’s agents.

“Because Qatar is not a party here” and has not otherwise

asserted its sovereign interests in immunizing these defendants,

Broidy argues, “the interests usually attendant to litigation

against foreign states are not implicated.” Appellees’ Br. 25.

But the Supreme Court in Samantar acknowledged that, in

addition to the immunity of sovereign states that Congress

codified in the FSIA, residual conduct-based immunity may

protect certain individual officials of foreign governments.

Samantar I, 560 U.S. at 320-21. As a general matter, where a

colorable defense of such conduct-based foreign official

immunity is raised, an order denying it is immediately

appealable. See Samantar II, 699 F.3d at 768 n.1; Mamani v.

Berzain, 654 F.3d 1148, 1151 n.3 (11th Cir. 2011); cf. Process

& Indus. Devs., 962 F.3d at 583 (appeals “must be colorable”).

Relatedly, Broidy argues that the defendants’ immunity

assertion does not raise a matter of sufficient “public interest”

or “identify a ‘particular value of high order’” to support

immediate review. Appellees’ Br. 23-24 (emphasis omitted)

(quoting Will, 546 U.S. at 352-53). The reasoning in Will v.

Hallock on which Broidy relies identifies general categories of

important interests that courts have recognized to support

immediate appeal under the collateral order doctrine. See 546

U.S. at 351-53. But Broidy’s contention that the “defendants’

claims of conduct-based foreign official immunity do not raise

weighty enough public interests to justify this Court’s

collateral-order jurisdiction,” Appellees’ Br. 27, is based on

what he sees as weaknesses in the defendants’ immunity claims

rather than any doubt that a denial of a colorable claim of

conduct-based immunity for individual agents of a foreign state

would be immediately appealable. In the absence of binding

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precedent foreclosing such an immunity defense, we think

Broidy’s argument is appropriately directed at the merits of the

defendants’ immunity, not their appealability.

We conclude that we have appellate jurisdiction because

the asserted defense of conduct-based immunity for the

defendants’ acts allegedly taken on behalf a foreign state

satisfy the requirements of the collateral order doctrine. Based

on allegations that they acted at the behest of a foreign state,

their immunity defense draws on sparse authorities in an

unsettled area of law. This appeal provides an opportunity to

mark some limits. We recognize that, in doing so, our decision

may nudge previously colorable claims into the realm of non-

colorable. Clarification of the principles of immunity law

should help to ensure that our acceptance of jurisdiction here

does not invite a host of appeals asserting non-colorable claims

of immunity. When a future litigant situated similarly to the

defendants cites today’s decision in support of immediate

appeal, we will face the threshold question “[w]hether after our

holding in this case, . . . such a defendant may bring an

interlocutory appeal.” Toussie v. Powell, 323 F.3d 178, 182

(2d Cir. 2003).

B.

We proceed to de novo review of the district court’s denial

of the defendants’ motions to dismiss on immunity grounds.

See de Csepel, 714 F.3d at 597.

1.

United States courts historically have recognized a

common-law doctrine of foreign sovereign immunity as “a

matter of grace and comity on the part of the United States”

toward other sovereign states. Verlinden B.V. v. Cent. Bank of

Nigeria, 461 U.S. 480, 486 (1983). In the Foreign Sovereign

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Immunities Act of 1976 (FSIA), Congress codified the doctrine

insofar as it protects a foreign state sued in its sovereign

capacity. See 28 U.S.C. § 1602 et seq.; Helmerich & Payne,

137 S. Ct. at 1319-21. Under the FSIA, a foreign state is

“presumpti[vely]” immune from suit in U.S. courts, subject to

enumerated exceptions. Schermerhorn v. State of Israel, 876

F.3d 351, 358 (D.C. Cir. 2017); see 28 U.S.C. §§ 1603-1607.

But the FSIA covers only civil actions against a “foreign state”

or its “political subdivisions and agencies or instrumentalities,”

not individuals. Samantar I, 560 U.S. at 317-19; see 28 U.S.C.

§ 1603(a)-(b).

Foreign sovereign immunity may, in certain

circumstances, also protect individuals even though the FSIA

does not. See Samantar I, 560 U.S. at 324-25. Residual

common-law foreign sovereign immunity includes: (1)

“[s]tatus-based immunity[, which] is reserved for diplomats

and heads of state,” Lewis, 918 F.3d at 145, and (2) “conduct-

based immunity,” for an “act performed by the individual as an

act of the State,” Samantar II, 699 F.3d at 774 (quoting Hazel

Fox, The Law of State Immunity 455 (2d ed. 2008)); see also

Lewis, 918 F.3d at 145. The defendants here are not diplomats

or heads of state; they claim only conduct-based immunity.

Immunity claims not covered by the FSIA are governed by

a two-step analysis. Samantar I, 560 U.S. at 311-12. We ask

first whether the State Department has made a “suggestion of

immunity” applicable to the defendant. Id. at 311. The

diplomatic representative of the implicated sovereign may

request that the State Department make a suggestion of

immunity, and if the State Department agrees immunity is

appropriate, the district court typically dismisses the case on

that ground. Id.; see Republic of Mexico v. Hoffman, 324 U.S.

30, 34-35 (1945). Broidy does not allege, nor do the defendants

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assert, that the State Department offered its views in this case

or that Qatar ever sought them. We thus proceed to step two.

In the absence of any suggestion of immunity, the court is

left at the second step “to decide for itself whether all the

requisites for immunity exist[].” Samantar I, 560 U.S. at 311

(quoting Ex parte Peru, 318 U.S. 578, 587 (1943)). The

Supreme Court has not explained precisely what “requisites”

an individual claiming immunity must establish, nor have we.

But the Court in Samantar observed that courts historically

“inquired ‘whether the ground of immunity is one which it is

the established policy of the [State Department] to recognize.’”

Id. at 312 (alteration in original) (quoting Hoffman, 324 U.S. at

36)). That focus on State Department policy reflects the reality

that the branches of our government “responsible for the

conduct of the nation’s foreign relations” are best positioned to

assess whether exercising jurisdiction over a foreign

sovereign’s official or agent might frustrate the United States’

foreign relations interests. Heaney v. Gov’t of Spain, 445 F.2d

501, 503 (2d Cir. 1971); accord Verlinden, 461 U.S. at 486.

We glean State Department policy and practice in this area “by

reference to prior State Department decisions,” Verlinden, 461

U.S. at 487, such as suggestions of immunity and statements of

interest in other cases.

2.

The defendants advance a sweeping theory of conduct-

based sovereign immunity for the private agents of foreign

sovereigns. They contend that the principles laid down by the

State Department in past cases afford conduct-based immunity

to any defendant who is alleged to have acted at the behest of a

foreign sovereign. If it were otherwise, say the defendants, a

plaintiff such as Broidy, “having tried and failed to sue Qatar

directly,” could “simply repackage his case by leveling the

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same accusations of cyberespionage against agents who

allegedly carried out Qatari policy” and try to obtain “sensitive

diplomatic material in discovery” just as if Qatar itself were on

trial. Appellants’ Br. 27.

In support, the defendants cite several suggestions of

immunity the State Department made in lawsuits brought

against former officials of foreign sovereigns, including a

former President of Mexico and two former Israeli defense

officials. See Suggestion of Immunity, Addendum to

Appellees’ Br. (Add.) at 236, Doğan v. Barak, No. 2:15-cv-

8130 (C.D. Cal. June 10, 2016); Suggestion of Immunity, Add.

at 224, Doe v. Zedillo Ponce de Leon, No. 3:11-cv-1433 (D.

Conn. Sept. 7, 2012); Statement of Interest, Add. at 284, Matar

v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007) (No. 1:05-cv-

10270). In the defendants’ view, those cases illustrate a general

policy that “exercising jurisdiction over the agent of a foreign

sovereign would ‘intrude on core aspects of the foreign state’s

sovereignty and give rise to serious diplomatic tensions.’”

Appellants’ Br. 23 (quoting Brief for United States as Amicus

Curiae at 25, Add. at 378, Matar v. Dichter, 563 F.3d 9 (2d Cir.

2009) (No. 07-2579)). To them, Broidy’s lawsuit is “a

paradigmatic example of how a claim nominally against an

individual agent can target the alleged acts of a sovereign” such

as Qatar, despite the Ninth Circuit’s recognition of Qatar’s

immunity from Broidy’s suit. Id. at 19-20.

The defendants’ narrower, alternative argument is that an

agent of a foreign sovereign is entitled to immunity insofar as

the agent’s challenged actions were taken at the sovereign’s

specific direction. For that theory, sometimes referred to as

“derivative” immunity, defendants rely principally on Butters

v. Vance International, Inc., 225 F.3d 462 (4th Cir. 2000).

16

Broidy invokes our opinion in Lewis v. Mutond to counter

that, in his view, the appropriate immunity standard for agents

of foreign states is found in section 66(f) of the Restatement

(Second) of Foreign Relations Law. In Lewis, we observed that

conduct-based foreign official immunity under section 66(f)

applies only “if the effect of exercising jurisdiction would be

to enforce a rule of law against the state.” 918 F.3d at 145

(quoting Restatement § 66(f)). Broidy asserts that standard

cannot be met where private contractors such as the defendants

here are sued in their private capacities.

Guided by the State Department’s past practice, we

conclude that the defendants have not demonstrated they would

be granted immunity under any established State Department

policy. Given the lack of precedent supporting immunity for

private parties in circumstances like those of the defendants

here, we again need not resolve the question whether section

66(f) accurately restates the law to hold that the immunity

defense falls short.

At the outset, the defendants’ immunity claim is

unsupported. Recall that the defendants “bear[] the burden of

proving” they qualify for immunity, id., and that we “must

engage in sufficient pretrial factual and legal determinations to

satisfy” ourselves of jurisdiction, Belhas, 515 F.3d at 1281.

When assessing immunity, “the nature of the court’s inquiry

depends on the nature of the defendant’s challenge.” Kilburn,

376 F.3d at 1127.

Here, the defendants choose to rely on the amended

complaint alone. Broidy’s complaint alleges that Qatar hired

the defendants to assist it in rehabilitating the country’s image

and that the defendants ultimately resorted to unlawful means

to accomplish that goal. In particular, it alleges that the

defendants came together as what the complaint dubs the

17

“Qatari Enterprise,” which included Qatari officials among

others. The defendants allegedly worked to advance Qatar’s

interests and objectives, especially by influencing public and

official opinion in the United States to favor Qatar and tarnish

the reputation of Broidy, an influential critic of Qatar. See

Amended Compl. ¶¶ 50, 78-79, 199, J.A. 24, 30-31, 56-57.

Broidy alleges generally that the “[d]efendants targeted

[Broidy] on behalf of Qatar.” Id. ¶ 32, J.A. 21. Broidy’s

complaint does not, however, allege that Qatar hired the

defendants to act as its agents to carry out any sovereign

functions, nor does it specify that Qatar requested, approved,

or even knew of the unlawful conduct at the heart of Broidy’s

claims.

Past expressions of State Department policy do not support

immunity for private individuals in the defendants’

circumstances. The defendants do not contend that Qatar

sought immunity on their behalf. The allegations of the

complaint describe defendants’ link to Qatar as an arms-length,

general agreement to provide public relations services to

burnish Qatar’s reputation, in part by tarnishing that of its vocal

and powerful critic Elliott Broidy.

State Department practice suggests that the State of

Qatar’s apparent silence on this case weighs heavily against

immunity. Indeed, the State Department’s position in

Samantar itself shows that the foreign government’s interest—

or lack thereof—bears “principal[]” weight in the immunity

analysis. See Brief for the United States as Amicus Curiae at

22, Samantar v. Yousuf, 571 U.S. 1156 (2014) (No. 12-1078).

To be sure, in Samantar “there was no recognized government

of Somalia to assert immunity,” id., but the result is the same:

Here, as in Samantar, we have no reason to believe that any

sovereign has indicated an interest the State Department would

seek to protect. The court’s analysis may take into account

18

whether the foreign sovereign on whose behalf the defendants

were acting even requested that the State Department submit a

suggestion of immunity to the court. Cf. Lewis, 918 F.3d at 146

(noting that the Democratic Republic of the Congo sought a

suggestion of immunity, albeit unsuccessfully). It is therefore

notable that Qatar, on whose behalf the defendants purportedly

acted, has not indicated any interest in this case, whether by

requesting a formal suggestion of immunity or otherwise.

Contract terms between certain defendants and Qatar do

not support the defendants’ assertion of immunity. Some of the

defendants acknowledge that a consulting agreement between

Stonington Strategies and Qatar—the only written agreement

between a defendant and Qatar that is available for our

review—expressly disclaims the creation of an agency

relationship. Filed as part of Muzin’s registration as a foreign

agent and proffered as an exhibit in the California litigation

between many of these same parties, that agreement states in

particular that it was “not intended to establish

a[] . . . principal-agent relationship” between Stonington

Strategies and Qatar. Agreement for Consulting Services, Ex.

9 to Plaintiff’s Ex Parte Application for TRO at 100-01, Broidy

Cap. Mgmt., LLC v. State of Qatar, No. 18-cv-02421 (C.D.

Cal. Apr. 2, 2018), ECF 31-9. In a filing before the district

court in this case, Muzin and Stonington Strategies

acknowledged as much, even as they argued they should

nevertheless be held immune. See Muzin & Stonington’s Brief

in Support of Motion to Dismiss at 23 n.11, Broidy Cap.

Mgmt., LLC v. Muzin, No. 19-cv-00150 (D.D.C. May 7,

2019), ECF 40-1 (recognizing that “[t]he [agreement] states

that it does not establish an agency relationship”).

Pressed at oral argument for information showing that the

defendants acted as Qatar’s official agents or followed its

directives, defendants’ counsel said that some of the defendants

19

were registered foreign agents of Qatar under the Foreign

Agents Registration Act (FARA), 22 U.S.C. § 611 et seq., for

at least some of the period relevant to this appeal. But never

has the State Department suggested, nor has this court held, that

registered foreign agents are entitled to their principal’s

sovereign immunity as a matter of law. Indeed, counsel

conceded that registration as a foreign agent under FARA is

“absolutely not” sufficient to establish the sort of agency

relationship necessary to cloak a private-party agent in any

residuum or derivative of the foreign sovereign’s immunity.

Oral Arg. Tr. 15. Simply put, the defendants point to no State

Department policy supporting immunity for private parties

with the kind of loose and limited agency relationship that

Broidy alleges these defendants had with the State of Qatar,

and they offer no independent factual basis for their theory.

Because Broidy’s allegations stop short of describing even the

sort of agency relationship the defendants contend would

immunize them, their claim to immunity fails.

In addition to the weakness of the defendants’ claimed

connection with Qatar, the close connections of the parties and

the claims to the United States counts against immunity.

Broidy directs our attention to multiple cases in which the State

Department found a defendant’s affiliation with the United

States to militate against immunity. In Samantar and Ahmed v.

Magan, for instance, plaintiffs sued former high-ranking

Somali officials for alleged misconduct in office. The officials

had since moved to the United States. In responding to requests

for suggestions of immunity in both cases, the State

Department observed that “U.S. residents . . . who enjoy the

protections of U.S. law ordinarily should be subject to the

jurisdiction of our courts, particularly when sued by U.S.

residents.” Statement of Interest ¶ 9, Add. at 443, Samantar II,

No. 12-2178 (4th Cir. Dec. 20, 2012); see also Statement of

Interest ¶ 9, Add. at 135, Ahmed v. Magan, No. 10-cv-342

20

(S.D. Ohio Mar. 15, 2011). The defendants here are (1) U.S.

residents (and, indeed, citizens) (2) sued by U.S. plaintiffs

(3) under U.S. law (4) for conduct that allegedly took place in

the United States. Amended Compl. ¶ 11-19, 22, 26-29, J.A.

16-20. The defendants are correct that the State Department

has not necessarily treated those factors as individually

dispositive, see Brief for the United States as Amicus Curiae at

5-6, 22-23, Samantar v. Yousuf, 571 U.S. 1156 (2014) (No. 12-

1078), but it is clear that together they weigh heavily against

claims of conduct-based immunity.

At bottom, the defendants argue that because Broidy

alleges they acted on behalf of Qatar, they must be immune

from suit. But the defendants have not identified any

established State Department policy of extending foreign

official immunity to defendants in circumstances like theirs.

The defendants alternatively contend they are immune

under a distinct doctrine that they call “derivative” immunity.

They describe that doctrine as covering any action “specifically

ordered” by a foreign sovereign. Appellants’ Br. 28. In

support of that defense, the defendants rely almost exclusively

on Butters v. Vance International, Inc., 225 F.3d at 465. There,

the Fourth Circuit affirmed a district court’s decision to extend

“derivative FSIA immunity” to a private U.S. contractor

providing security to members of the Saudi royal family in the

United States. Id. A security guard of the contractor sued it

for sex discrimination in violation of U.S. law after the

contractor, acting at the direction of a Saudi Arabian general

not to place a woman in the position in question, withdrew its

recommendation that she be promoted within the royal security

detail. In dismissing the claim on foreign official immunity

grounds, the court reasoned by analogy to sovereign immunity

in the domestic context: “Imposing liability on private agents

of the government would directly impede the significant

21

governmental interest in the completion of its work.” Id. at

466. In that court’s view, “[a]ll sovereigns need flexibility to

hire private agents to aid them in conducting their

governmental functions,” including foreign sovereigns

“operating within the United States.” Id. Any other rule, the

court suggested, “would discourage American companies from

entering lawful agreements with foreign governments.” Id.

The Butters court thus saw it as “but a small step” to extend the

doctrine of domestic derivative sovereign immunity to the

agents of foreign nations operating in the United States. Id.

The defendants argue that the same is true here.

Butters is out-of-circuit precedent and not binding on us,

and this court has never suggested a derivative immunity

doctrine might apply in the foreign immunity context.

Moreover, Butters predates Samantar and by its own terms

applies the FSIA itself to a private actor’s claim of immunity.

Id. at 465, 467 (construing “FSIA immunity”). The Supreme

Court foreclosed that approach in Samantar. Such claims of

immunity must rise or fall not under the FSIA, but the residual

law and practice that the FSIA did not displace. See Samantar

I, 560 U.S. at 316, 319, 324-25 (holding the FSIA applies only

to states and their “agenc[ies] or instrumentalit[ies],” excluding

private entities or individuals). The district court’s thoughtful

opinion also identified reasons the State Department might

hesitate to recognize derivative immunity for agents or officials

of presumptively immune foreign sovereign states. Broidy

Cap. Mgmt., 2020 WL 1536350, at *7 (“[T]he United States

does not necessarily share an interest with the agents of a

foreign sovereign, and those interests will routinely diverge, as

they do in this case.”).

Although we are inclined to agree with the district court,

the defendants do not even meet the standard the Fourth Circuit

embraced in Butters. We thus need not decide whether

22

derivative immunity might apply were a sovereign specifically

to order a private party to take action on its behalf as sovereign

in violation of U.S. law. As the defendants acknowledge,

where it applies in the domestic context, derivative immunity

reaches only conduct “specifically ordered,” Appellants’ Br.

28, or “authorized and directed by the Government,” In re

OPM Data Sec. Breach Litig., 928 F.3d 42, 69 (D.C. Cir. 2019)

(per curiam) (citation omitted); see Butters, 225 F.3d at 466.

The defendants characterize Broidy’s complaint as alleging

that they “disseminated [Broidy’s] hacked materials at Qatar’s

direction.” Appellants’ Br. 6; accord id. at 33. But the

complaint lacks any such allegation. Instead, as noted

previously, Broidy alleges that the defendants were part of a

group he calls the “Qatari Enterprise,” which also included

third parties such as Qatari officials, and that the Enterprise

collectively executed a scheme of influence and intrigue aimed

at discrediting Broidy. See, e.g., Amended Compl. ¶¶ 50, 78-

79, 199, J.A. 24, 30-31, 56-57. The closest Broidy comes to

alleging that Qatar itself directed the defendants’ misconduct is

in his allegations about compensation: He says that the

defendants “were paid millions of dollars by Qatar, its agents,

and its instrumentalities to participate in the conspiracy to

disseminate hacked materials and join the Qatari Enterprise,”

id. ¶ 7, J.A. 15, and that the defendants received sizeable

payments from Qatar soon after the alleged hack. Broidy

alleges those facts imply “that [the defendants] were aware of

the Qatari Enterprise’s efforts to attack [Broidy] and that these

payments were compensation to the defendants for their role in

the conspiracy and unlawful scheme.” Id. ¶ 170, J.A. 50.

But the complaint simply does not allege Qatar

“specifically ordered” the defendants to participate in a scheme

to hack and distribute Broidy’s private emails, as the

defendants themselves concede is necessary to support their

theory of derivative immunity. Appellants’ Br. 28. That gap

23

in Broidy’s allegations contrasts with Butters, where the issue

was decided at the summary judgment stage based on the

absence of a material factual dispute that the defendant

contractor acted “under the direct military orders of” a Saudi

official to take action contrary to U.S. antidiscrimination law.

225 F.3d at 465-67. We have held in the domestic context that

a contractor might avail itself of the government’s derivative

immunity only where it acts pursuant to specific directions

from the government. In re OPM Data Sec. Breach, 928 F.3d

at 70; see also Cabalce v. Thomas E. Blanchard & Assocs.,

Inc., 797 F.3d 720, 732 (9th Cir. 2015) (noting that derivative

immunity does not apply to contractors exercising discretion in

working to accomplish broad governmental objectives). We

do not suggest that we would apply a derivative immunity

theory in the foreign official immunity context. But the

allegations here could not support that defense in any event.

Finally, Broidy relies on Lewis v. Mutond to argue that,

under section 66(f) of the Second Restatement, an “agent” of a

foreign state is entitled to immunity only “if the effect of

exercising jurisdiction would be to enforce a rule of law against

the state,” 918 F.3d at 145 (quoting Restatement § 66(f)), a

standard he says is not met where private contractors like the

defendants here are sued in their private capacities. The district

court held in the alternative that defendants lack immunity

because permitting this litigation to proceed would not have the

effect of “enforc[ing] a rule of law against” Qatar. Broidy Cap.

Mgmt., 2020 WL 1536350, at *8 (citation omitted). According

to the defendants, that analysis is “overly restrictive” and

categorically eliminates immunity for foreign officials sued in

their personal capacities. Appellants’ Br. 49.

It is unclear whether the Restatement articulates the

correct standard. Neither the Supreme Court nor this court has

ever endorsed it. See Samantar I, 560 U.S. at 321 & n.15. In

24

Lewis, we emphasized that both parties had assumed the

Restatement’s test controlled, and that their assumptions were

central to our analysis. See 918 F.3d at 146-47; id. at 148

(Srinivasan, J., concurring); id at 150 (Randolph, J., concurring

in the judgment). The State Department, too, has registered its

skepticism regarding the Restatement’s test. See Brief for the

United States as Amicus Curiae at 14-15, Mutond v. Lewis,

141 S. Ct. 156 (2020) (No. 19-185).

If the Restatement furnished a relevant standard, however,

our application of section 66(f) at the parties’ behest in Lewis

illustrates why the immunity claim of the defendants here

would likewise be foreclosed. There, we concluded that any

costs to the sovereign resulting from sitting officials being

forced to “defend their handling of high-profile domestic

security matters in U.S. courts” were “collateral effects . . . too

attenuated to be equated with the direct fiscal impacts on the

foreign state that are contemplated by the Restatement.” 918

F.3d at 147 (citation omitted). The same is surely true here,

where the defendants are private contractors rather than

officials of a foreign sovereign. The indirect risk to Qatar that,

by pursuing his claims against the defendants on remand,

Broidy will seek to “gain access to Qatar’s sensitive,

diplomatic communications,” Appellants’ Reply 1, does not

suffice. In any event, we trust the district court has the

appropriate tools to protect Qatar’s absolute FSIA “immunity

from trial and the attendant burdens of litigation,” Kilburn, 376

F.3d at 1126 (citation omitted).

* * *

The defendants have not shown “all the requisites

for . . . immunity [to] exist[].” Samantar I, 560 U.S. at 311

(quoting Ex parte Peru, 318 U.S. at 587). Accordingly, we

affirm.

25

CONCLUSION

The judgment of the district court is affirmed and the

matter remanded for further proceedings consistent with this

opinion.

So ordered.