United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2005 Decided August 5, 2005
No. 04-5266
ODILLA MUTAKA MWANI, ET AL.,
APPELLANTS
v.
OSAMA BIN LADEN AND
AFGHANISTAN, A FOREIGN STATE,
APPELLEES
Appeal from the United States District Court
(USDC) for the District of Columbia
(No. 99cv00125)
Philip M. Musolino argued the cause and filed the briefs for
appellants.
R. Michael Smith argued the cause and filed the brief for
appellee. Carolyn M. Welshhans entered an appearance.
Before: EDWARDS, TATEL, and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
2
GARLAND, Circuit Judge: On August 7, 1998, a devastating
truck bomb exploded outside the American embassy in Nairobi,
Kenya. The blast killed more than 200 people, including 12
Americans, and wounded more than 4000 others. Most of the
casualties were Kenyan. The plaintiffs in this case are all
Kenyan: victims, relatives of victims, and businesses harmed in
the attack. They sued defendants Osama bin Laden and al
Qaeda for orchestrating the bombing, and defendant Afghanistan
for providing logistical support to bin Laden and al Qaeda. The
district court dismissed the claims against Afghanistan for lack
of subject matter jurisdiction, and those against bin Laden and
al Qaeda for lack of personal jurisdiction.
Although we agree that the Foreign Sovereign Immunities
Act bars the plaintiffs’ claims against Afghanistan, we reverse
the dismissal of their actions against bin Laden and al Qaeda.
Those defendants “engaged in unabashedly malignant actions
directed at [and] felt” in this country. GTE New Media Servs.,
Inc v. Bellsouth Corp, 199 F.3d 1343, 1349 (D.C. Cir. 2000).
Bin Laden and al Qaeda should therefore “reasonably anticipate
being haled into court” here by those injured as a result of those
actions, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473-74
(1985), regardless of the plaintiffs’ nationality.
I
In early 1999, Odilla Mutaka Mwani and his fellow
plaintiffs filed this action in the United States District Court for
the District of Columbia. They sought compensatory damages
and other relief from Osama bin Laden, the terrorist organization
known as al Qaeda, and the nation of Afghanistan for the
injuries they sustained in the embassy bombing.1 The plaintiffs
1
The plaintiffs also named the United States and Sudan as
defendants. The district court dismissed those claims, and the
3
predicated subject matter jurisdiction for their claims against
Afghanistan on the Foreign Sovereign Immunities Act (FSIA),
28 U.S.C. §§ 1602 et seq., and for those against bin Laden and
al Qaeda on the Alien Tort Claims Act (ATCA), 28 U.S.C. §
1350. The latter provides that “[t]he district courts shall have
original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of
the United States.” Id.
On February 12, 1999, the plaintiffs moved to serve
defendants bin Laden and al Qaeda by publication. On August
2, 1999, the district court granted the plaintiffs leave to serve
those defendants by “publishing. . . notice for six weeks in the
Daily Washington Law Reporter, the International Herald
Tribune, and Al-Quds Al-Arabi (in Arabic).” Mwani v. United
States, No. 99-125, Order at 4 (D.D.C. Aug. 2, 1999) (“August
1999 Order”). The plaintiffs later advised the court that the
notice had run in all three newspapers, as well as in two
additional East African publications.
To no one’s surprise, neither bin Laden nor al Qaeda
responded. On August 11, 2000, the plaintiffs moved for entry
of default against them. Because the district court was not
satisfied that it had personal jurisdiction over bin Laden and al
Qaeda, it denied the motion without prejudice, granting
plaintiffs additional time to pursue the issue. See Mwani v.
United States, No. 99-125, Mem. Op. at 2-3, 5 (D.D.C. Mar. 15,
2001) (“March 2001 Opinion”). The plaintiffs responded with
a renewed motion for entry of default in July 2001, and with
supplemental memoranda in August, September, and October of
that year. In these papers, the plaintiffs argued that bin Laden
and al Qaeda had sufficient nationwide contacts with the United
States to satisfy constitutional limits on the court’s exercise of
plaintiffs have not appealed.
4
jurisdiction.2
On September 30, 2002, the district court held that, to enter
a default, it “must have jurisdiction over the party against whom
the judgment is sought,” and the plaintiffs must demonstrate
such jurisdiction by a preponderance of the evidence. Mwani v.
United States, No. 99-125, Mem. Op. at 2 (D.D.C. Sept. 30,
2002) (“September 2002 Opinion”) (internal quotation marks
omitted). Applying those principles, the court concluded that
the plaintiffs had “failed to sustain their burden of proving that
this Court can exercise personal jurisdiction over” bin Laden
and al Qaeda. Id. That was so, the court said, both because of
the quality of the plaintiffs’ evidence, and because of its failure
to establish sufficient contacts between the defendants and the
forum to permit the exercise of jurisdiction under the District of
Columbia’s long-arm statute and the U.S. Constitution. See id.
at 9-11.
The dismissal of the plaintiffs’ claims against bin Laden and
al Qaeda left Afghanistan as the only remaining defendant. The
plaintiffs effected service of process by certified mail on
Afghanistan’s Ministry of Foreign Affairs, through that
country’s embassy in the District of Columbia. An appearance
was entered by the Transitional Islamic State of Afghanistan
(hereinafter Afghanistan) -- “the interim government for
Afghanistan established by the Bonn Accords of December
2
The plaintiffs offered two additional bases for personal
jurisdiction, one grounded in the concept of “universal jurisdiction”
and the other in the “effects doctrine.” Pls.’ Renewed Mot. for Entry
of Default at 19, 21 (July 16, 2001). The district court rejected both,
as well as the contention that the defendants’ nationwide contacts were
sufficient to permit the exercise of jurisdiction. Because we conclude
that the nationwide contacts were in fact sufficient, we do not address
the plaintiffs’ additional bases.
5
2002, which were implemented under the United Nations’
auspices after the Taliban’s armed forces were defeated by an
international coalition and the Northern Alliance.” Appellees
Br. at 4. Afghanistan then moved to dismiss the plaintiffs’
claims for lack of personal and subject matter jurisdiction, citing
the FSIA.
In June 2004, the district court granted Afghanistan’s
motion to dismiss, rejecting the plaintiffs’ contention that the
case fell within two exceptions to the FSIA -- for implicit waiver
and commercial activities. Mwani v. United States, No. 99-125,
Mem. Op. at 12 (D.D.C. June 22, 2004) (“June 2004 Opinion”).
At the same time, it denied the plaintiffs’ request for
jurisdictional discovery because it did “‘not see what facts
additional discovery could produce that would affect [its]
jurisdictional analysis.’” Id. at 11 (quoting Goodman Holdings
v. Rafidain Bank, 26 F.3d 1143, 1147 (D.C. Cir. 1994)).
The plaintiffs filed a timely appeal. In Part II, we consider
their contention that the district court erred in dismissing the
claims against bin Laden and al Qaeda. In Part III, we address
their challenge to the dismissal of the claims against
Afghanistan.
II
We review the dismissal of a claim for lack of jurisdiction
de novo. See, e.g., Gorman v. Ameritrade Holding Corp., 293
F.3d 506, 509 (D.C. Cir. 2002). In evaluating the district court’s
dismissal of the claims against bin Laden and al Qaeda, we must
consider two distinct determinations made by the court. The
first is the appropriate burden and standard of proof for
establishing personal jurisdiction over an absent defendant at
this stage of the litigation. The second is whether the plaintiffs
satisfied those requirements.
6
A
The district court correctly noted that the entry of a default
judgment3 is not automatic, and that a court should satisfy itself
that it has personal jurisdiction before entering judgment against
an absent defendant. March 2001 Opinion at 2.4 The court
acknowledged that when ruling upon personal jurisdiction
without an evidentiary hearing, a court ordinarily demands only
a prima facie showing of jurisdiction by the plaintiffs.
September 2002 Opinion at 6.5 It is only if the court takes
evidence on the issue or rules on the personal jurisdiction
question in the context of a trial that a heightened,
preponderance of the evidence standard applies. Id.6
Nonetheless, the district court concluded that in this case it
3
The district court intentionally collapsed the two stages of
default, treating the plaintiffs’ motion for entry of default by the clerk,
see FED. R. CIV. P. 55(a), as a motion for entry of a default judgment
by the court, see id. 55(b)(2). See 10A CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND
PROCEDURE §§ 2682, 2685 (3d ed. 1998) (hereinafter WRIGHT &
MILLER).
4
See Dennis Garberg & Assocs. v. Pack-Tech Int’l Corp., 115
F.3d 767, 772 (10th Cir. 1997) (“[A] district court must determine
whether it has jurisdiction over the defendant before entering
judgment by default against a party who has not appeared in the
case.”); 10A WRIGHT & MILLER § 2682, at 14.
5
See Edmond v. United States Postal Serv. Gen. Counsel, 949
F.2d 415, 424 (D.C. Cir. 1991); First Chi. Int’l v. United Exch. Co.,
836 F.2d 1375, 1378-791 (D.C. Cir. 1988); Dennis Garberg &
Assocs., 115 F.3d at 773; 2 JAMES W. MOORE, MOORE’S FEDERAL
PRACTICE § 12.31[5] (3d ed. 2002) (hereinafter MOORE’S).
6
See Dennis Garberg & Assocs., 115 F.3d at 773; MOORE’S §
12.31[5].
7
should require the plaintiffs to establish jurisdiction by a
preponderance of the evidence, because it was “on the cusp of
a default judgment proceeding . . . , and . . . Defendants are not
presently before the Court.” September 2002 Opinion at 6. And
it further determined that, to satisfy that burden, the plaintiffs
would have to proffer evidence meeting the standards of
admissibility ordinarily reserved for the summary judgment and
trial stages of litigation. See id. at 12-14.
We reject this approach. The absence of the defendant is
precisely the reason the Federal Rules of Civil Procedure
provide for default judgments, which safeguard plaintiffs “when
the adversary process has been halted because of an essentially
unresponsive party. In that instance, the diligent party must be
protected lest he be faced with interminable delay and continued
uncertainty as to his rights.” Jackson v. Beech, 636 F.2d 831,
836 (D.C. Cir. 1980) (internal quotation marks omitted). Far
from constituting a rationale for increasing the plaintiffs’ burden
of proof, if anything the absence of the defendants counsels
greater flexibility toward the plaintiffs because it impedes their
ability to obtain jurisdictional discovery. There is thus no
reason for the district court to insist upon an evidentiary hearing,
and it did not do so in this case.
In the absence of an evidentiary hearing, although the
plaintiffs retain “the burden of proving personal jurisdiction,
[they] can satisfy that burden with a prima facie showing.”
Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d
415, 424 (D.C. Cir. 1991) (citation omitted). Moreover, to
establish a prima facie case, plaintiffs are not limited to evidence
that meets the standards of admissibility required by the district
court. Rather, they may rest their argument on their pleadings,
bolstered by such affidavits and other written materials as they
8
can otherwise obtain.7
Adherence to these principles does not unduly disadvantage
those absent defendants who truly are beyond the power of the
court. Entry of a default judgment is not the court’s final say on
a matter. Rule 55(c) provides that “[f]or good cause shown the
court may set aside . . . a judgment by default . . . in accordance
with Rule 60(b).” FED. R. CIV. P. 55(c). Under the rule, a
defendant can successfully challenge a default judgment in the
rendering court on the ground of lack of personal jurisdiction.
See, e.g., Combs v. Nick Garin Trucking, 825 F.2d 437, 438
(D.C. Cir. 1987). And a defendant is “always free to ignore the
judicial proceedings, risk a default judgment, and then challenge
that judgment on jurisdictional grounds in a collateral
proceeding.” Insurance Corp. of Ireland, Ltd. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 706 (1982); see 10 JAMES W.
MOORE, MOORE’S FEDERAL PRACTICE §§ 55.50[2][b][i] (3d ed.
2005).
B
Having set forth the appropriate burden and standard of
proof, we now consider whether the plaintiffs have satisfactorily
shown that the district court may exercise personal jurisdiction
over bin Laden and al Qaeda. In the first section below, we
address the sources of authority for such an exercise. In the
second section, we consider whether the exercise of that
jurisdiction would contravene constitutional due process.
7
See, e.g., Naartex Consulting Corp. v. Watt, 722 F.2d 779, 787-
88 (D.C. Cir. 1983); Glencore Grain Rotterdam B.V. v. Shivnath Rai
Harnarain Co., 284 F.3d 1114, 1119 (9th Cir. 2002); Ball v.
Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir.
1990).
9
1
“Before a federal court may exercise personal jurisdiction
over a defendant, the procedural requirement of service of
summons must be satisfied.” Omni Capital Int’l, Ltd. v. Rudolf
Wolff & Co., 484 U.S. 97, 104 (1987). The district court did not
dispute that the plaintiffs had accomplished service by an
acceptable method. Rule 4 of the Federal Rules sets forth the
various methods by which a summons may be served in federal
court proceedings, and Rule 4(f) specifically addresses
“[s]ervice upon individuals in a foreign country.” It provides,
in relevant part:
Unless otherwise provided by federal law, service upon
an individual from whom a waiver has not been
obtained and filed . . . may be effected in a place not
within any judicial district of the United States . . . by
. . . means not prohibited by international agreement as
may be directed by the court.
FED. R. CIV. P. 4(f)(3) (emphasis added).
Here, the district court authorized the plaintiffs to serve bin
Laden and al Qaeda by publication. The court observed that
their “address is not known, nor is it easily ascertainable,”
August 1999 Order at 3, and that bin Laden had published at
least one fatwa in Al-Quds Al-Arabi, id. at 4. It concluded that
publication was “reasonably calculated to apprise [bin Laden
and al Qaeda] of the lawsuit and afford them an opportunity to
present their objections.” Id. In Mullane v. Central Hanover
Bank & Trust Co., the Supreme Court sanctioned service by
publication “where it is not reasonably possible or practicable to
give more adequate warning,” holding that, “in the case of
persons missing or unknown, employment of an indirect and
even a probably futile means of notification is all that the
10
situation permits and creates no constitutional bar to a final
decree foreclosing their rights.” 339 U.S. 306, 317 (1950).
The district court correctly recognized, however, that
service of process does not alone establish personal jurisdiction.
As the Supreme Court said in Omni Capital, “[b]efore a court
may exercise personal jurisdiction over a defendant, there must
be more than notice to the defendant.” 484 U.S. at 104. There
also must be “authorization for service of summons on the
defendant,” and a “constitutionally sufficient relationship
between the defendant and the forum.” Id.; see id. at 103 n.6
(noting the distinction between an “objection to the method of
service” and an objection “to amenability to service”). To
determine whether these requirements were satisfied here, the
district court undertook a traditional inquiry. It asked first
whether there was an applicable long-arm statute that would
authorize service on the defendants, and then whether the
application of such a statute would comply with the demands of
due process. See, e.g., GTE, 199 F.3d at 1347; Jungquist v.
Sheikh Sultan bin Khalifa Al Nahyan, 115 F.3d 1020, 1030-31
(D.C. Cir. 1997).
With respect to the availability of a long-arm statute, the
district court said that, “[b]ecause there is no federal equivalent,
District of Columbia law provides the long-arm statute
applicable in this case.” September 2002 Order at 3-4. Citing
one of our precedents, the court declared that the District’s long-
arm statute “is as far-reaching as due process allows, meaning
that only minimum contacts with the District are necessary to
sustain jurisdiction here.” Id. at 4 (quoting Caribbean
Broadcasting System, Ltd. v. Cable & Wireless PLC, 148 F.3d
1080, 1089 (D.C. Cir. 1998)). While it is true that some
provisions of the District’s long-arm statute reach as far as due
11
process permits,8 the only provision applicable here does not.
That provision is D.C. Code § 13-423(a)(4), which provides that
[a] District of Columbia court may exercise personal
jurisdiction over a person . . . as to a claim for relief
arising from the person’s -- . . . causing tortious injury
in the District of Columbia by an act or omission
outside the District of Columbia if he regularly does or
solicits business, engages in any other persistent
course of conduct, or derives substantial revenue from
goods used or consumed, or services rendered, in the
District of Columbia.
D.C. CODE § 13-423(a)(4) (emphasis added). It is unlikely that
the defendants would be susceptible to jurisdiction under that
provision, as no evidence was proffered that meets the italicized
prerequisites. But it is also clear that the Due Process Clause
does not demand the level of contacts required by that provision,
and hence that the provision does not extend as far as the
Clause. Indeed, as the District of Columbia Court of Appeals
has said, in “contrast to § 13-423(a)(1), which we have held to
be coextensive with the Constitution’s due process limit, ‘the
drafters of [§ 13-423(a)(4)] apparently intended that [this]
subsection would not occupy all of the constitutionally available
8
The plaintiffs in Caribbean Broadcasting sought to predicate
jurisdiction on the sale of advertising, which falls under the
“transacting any business” provision of the statute, D.C. CODE § 13-
423(a)(1). That provision states that a District of Columbia “court
may exercise personal jurisdiction over a person . . . as to a claim for
relief arising from the person’s . . . transacting any business in the
District of Columbia.” Id. The District courts have, in fact, concluded
that “the transacting any business provision is coextensive with the
due process clause.” Hummel v. Koehler, 458 A.2d 1187, 1190 (D.C.
1983) (internal quotation marks omitted).
12
space.’” Parsons v. Mains, 580 A.2d 1329, 1331 (D.C. 1990)
(quoting Carr v. Carr, 814 F.2d 758, 762 (D.C. Cir. 1987))
(alterations in original).
Prior to 1993, the absence of a state long-arm statute
reaching the defendants’ activity would have denied the district
court personal jurisdiction, since the federal cause of action at
issue here -- the ATCA -- contains no long-arm provision of its
own. As the Supreme Court explained in its 1987 decision in
Omni Capital, at that time the Federal Rules generally
authorized service beyond the territorial limits of the state in
which the district court was situated only when service was
authorized by “a federal statute or . . . the long-arm statute of
[that] State.” Omni Capital, 484 U.S. at 105 (citing then-FED.
R. CIV. P. 4(e)). Indeed, the problem the plaintiffs faced in
Omni Capital was identical to that faced by the plaintiffs here.
Like the ATCA, the statute providing their federal cause of
action (a provision of the Commodity Exchange Act) did not
authorize service on the foreign defendants. And like the
District of Columbia’s long-arm statute, the applicable state
long-arm did not reach the Omni Capital defendants because it
was limited to a defendant who “regularly does or solicits
business, or engages in any other persistent course of conduct,
or derives substantial revenue from goods used or consumed or
services rendered” in the state. Id. at 108 (quoting LA. REV.
STAT. ANN. § 13:3201(d)). Thus, the Federal Rules did not
authorize service of process on the defendants. See id.
In Omni Capital, the Supreme Court rejected a suggestion
by the dissenters in the court below that it should “remed[y] this
‘bizarre hiatus in the Rules’ with an ad hoc authorization of
service of process on [the defendants] based on their contacts
with the United States as a whole.” Id. at 102 (quoting Point
Landing, Inc. v. Omni Capital International, Ltd., 795 F.2d 415,
428 (5th Cir. 1986) (en banc) (Wisdom, J., concurring in part
13
and dissenting in part)). Nonetheless, the Court was “not blind
to the consequences of the inability to serve process on” the
foreign defendants, id. at 111, and it offered the following
suggestion:
A narrowly tailored service of process provision,
authorizing service on an alien in a federal-question
case when the alien is not amenable to service under
the applicable state long-arm statute, might well serve
the ends of [certain] federal statutes. It is not for the
federal courts, however, to create such a rule as a
matter of common law. That responsibility, in our
view, better rests with those who propose the Federal
Rules of Civil Procedure and with Congress.
Id.
Those “who propose the Federal Rules of Civil Procedure”
took notice of the Court’s suggestion, and a revision was
enacted in 1993. Although no case in this Circuit has yet cited
that revision, the Rules now contain their own long-arm
provision which, in some circumstances, eliminates the need to
employ the forum state’s long-arm statute. Rule 4(k)(2) now
provides:
If the exercise of jurisdiction is consistent with the
Constitution and laws of the United States, serving a
summons . . . is also effective, with respect to claims
arising under federal law, to establish personal
jurisdiction over the person of any defendant who is
not subject to the jurisdiction of the courts of general
jurisdiction of any state.
14
FED. R. CIV. P. 4(k)(2).9 Rule 4(k)(2) thus permits a federal
court to exercise personal jurisdiction over a defendant (1) for
a claim arising under federal law, (2) where a summons has been
served, (3) if the defendant is not subject to the jurisdiction of
any single state court, (4) provided that the exercise of federal
jurisdiction is consistent with the Constitution (and laws) of the
United States.
In the instant case, the claims arise under federal law (the
ATCA), and the summons was served by publication pursuant
to Rule 4(f). Whether the exercise of jurisdiction is consistent
with the Constitution turns on whether a defendant has sufficient
contacts with the nation as a whole to satisfy due process. See
FED. R. CIV. P. 4(k) advisory committee’s notes to 1993
amendments. We address that question in Part II.B.2. The
remaining question here is whether bin Laden and al Qaeda are
“subject to the jurisdiction of the courts of general jurisdiction
of any state.” FED. R. CIV. P. 4(k)(2).
9
The Advisory Committee’s Notes for the 1993 amendments to
Rule 4 provide the following background regarding paragraph (k)(2):
This paragraph corrects a gap in the enforcement of federal
law. Under the former rule, a problem was presented when
the defendant was a non-resident of the United States having
contacts with the United States sufficient to justify the
application of United States law . . . , but having insufficient
contact with any single state to support jurisdiction under
state long-arm legislation or meet the requirements of the
Fourteenth Amendment limitation on state court territorial
jurisdiction. . . . In this respect, the revision responds to the
suggestion of the Supreme Court made in Omni Capital . .
..
FED. R. CIV. P. 4(k) advisory committee’s notes to 1993 amendments.
15
Determining whether a defendant is subject to the
jurisdiction of a court “of any state” presents no small problem.
One could, of course, ponderously “traipse through the 50 states,
asking whether each could entertain the suit.” ISI Int’l, Inc. v.
Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7th Cir. 2001).
To avoid that daunting task, the Seventh Circuit has adopted the
following burden-shifting framework:
A defendant who wants to preclude use of Rule 4(k)(2)
has only to name some other state in which the suit
could proceed. Naming a more appropriate state would
amount to a consent to personal jurisdiction there
(personal jurisdiction, unlike federal subject-matter
jurisdiction, is waivable). If, however, the defendant
contends that he cannot be sued in the forum state and
refuses to identify any other where suit is possible,
then the federal court is entitled to use Rule 4(k)(2).
Id. We find this resolution eminently sensible, and, like the
Fifth Circuit, we adopt the Seventh Circuit’s view that “so long
as a defendant does not concede to jurisdiction in another state,
a court may use 4(k)(2) to confer jurisdiction.” Adams v.
Unione Mediterranea di Sicurta, 364 F.3d 646, 651 (5th Cir.
2004).
Needless to say, defendants bin Laden and al Qaeda have
not conceded to the jurisdiction of any state. Accordingly, we
now move to the final issue under Rule 4(k)(2).10
10
Although the plaintiffs did not expressly rely on Rule 4(k)(2),
we agree with the Seventh Circuit that “it is best to excuse the
forfeiture.” ISI Int’l, 256 F.3d at 551. “Federal courts are entitled to
apply the right body of law, whether the parties name it or not.” Id.
While the plaintiffs did not name Rule 4(k)(2) specifically, they
certainly identified the correct body of law, asserting “the availability
16
2
Whether the exercise of jurisdiction is “consistent with the
Constitution” for purposes of Rule 4(k)(2) depends on whether
a defendant has sufficient contacts with the United States as a
whole to justify the exercise of personal jurisdiction under the
Due Process Clause of the Fifth Amendment. See FED. R. CIV.
P. 4(k) advisory committee’s notes to 1993 amendments; see
also Adams, 364 F.3d at 651; ISI Int’l, 256 F.3d at 551. The
Clause “protects an individual’s liberty interest in not being
subject to the binding judgments of a forum with which he has
established no meaningful ‘contacts, ties, or relations,’” Burger
King, 471 U.S. at 472 (quoting International Shoe Co. v.
Washington, 326 U.S. 310, 319 (1945)), and “requir[es] that
individuals have ‘fair warning that a particular activity may
subject [them] to the jurisdiction of a foreign sovereign,’” id.
(quoting Shaffer v. Heitner, 433 U.S. 186, 218 (1977)) (second
alteration in original). “Where a forum seeks to assert specific
jurisdiction over an out-of-state defendant who has not
consented to suit there, this ‘fair warning’ requirement is
satisfied if the defendant has ‘purposefully directed’ his
activities at residents of the forum,” id. (quoting Keeton v.
Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)), “and the
litigation results from alleged injuries that ‘arise out of or relate
to’ those activities,” id. (quoting Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)).
In reaching the conclusion that it lacked personal
jurisdiction over bin Laden and al Qaeda, the district court
of national contacts personal jurisdiction . . . under F.R. Civ. P. 4,”
and citing the section of a treatise discussing paragraph (k)(2).
Appellants Br. at 21 (citing 4 WRIGHT & MILLER § 1068.1); Pls.’ Mot.
for Recons. at 3 & n.4 (Oct. 11, 2002) (same).
17
focused on a list of specific, physical contacts that the plaintiffs
alleged the defendants had made with the District of Columbia
and its environs. Those contacts included: the publication of
fatwas in a newspaper distributed in the United States; the
shipment to Virginia of the power supply for a cell phone that
bin Laden used in Afghanistan; the scheduling of a bin Laden
interview in Afghanistan through an agent in Washington, D.C.;
and the transmission of bin Laden’s views to the District via
interviews on CNN and ABC. See September 2002 Opinion at
28-29. Much of this evidence came from the indictment and
closing argument in United States v. Bin Ladin, No. 98-CR-1023
(S.D.N.Y.), as well as from government speeches, press
releases, and other reports. “All of Plaintiffs’ submissions to the
Court have various evidentiary problems,” the district court said.
September 2002 Opinion at 14; see id. at 13-14 (concluding that
several submissions constituted “inadmissible hearsay”). And
those problems aside, the court thought the evidence did not
demonstrate “that [bin Laden] and al Qaeda ‘purposefully
directed’ [their] activities at the United States” and “that this
litigation results from alleged injuries that arise out of or relate
to those activities.” Id. (quoting Burger King, 471 U.S. at
472).11
As we noted in Part II.A, the district court’s emphasis on
satisfying strict evidentiary standards at this stage of the
litigation was incorrect. While understandable given the
absence of Circuit precedent regarding Rule 4(k)(2), so, too, was
its exclusive focus on contacts with the District of Columbia,
11
The district court rejected the plaintiffs’ subsequent offers of
additional evidence in motions for reconsideration, in part because the
proffered evidence, even if newly discovered, “would not change the
Court’s . . . ruling on personal jurisdiction.” Mwani v. United States,
No. 99-125, Mem. Op. at 4 (D.D.C. Sept. 30, 2003) (denying motion
for reconsideration).
18
rather than with the nation as a whole. See supra Part II.B.1.
But the fundamental problem with the court’s analysis was its
focus on specific, physical contacts between the defendants and
the forum. Although “the constitutional touchstone remains
whether the defendant purposefully established ‘minimum
contacts’ in the forum,” Burger King, 471 at 474 (quoting
International Shoe, 326 U.S. at 316), the “foreseeability” of
causing injury in the forum can establish such contacts where
“the defendant’s conduct and connection with the forum . . . are
such that he should reasonably anticipate being haled into court
there.” Id. (quoting World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 295 (1980)). “Jurisdiction in these circumstances
may not be avoided merely because the defendant did not
physically enter the forum.” Id. at 477. Rather, “[s]o long as
[an] actor’s efforts are ‘purposefully directed’ toward residents
of another [forum],” the Supreme Court has “consistently
rejected the notion that an absence of physical contacts can
defeat personal jurisdiction there.” Id. at 476 (quoting Keeton,
465 U.S. at 774); see GTE, 199 F.3d at 1349 (noting that
“jurisdiction may attach if the defendant’s conduct is aimed at
or has an effect in the forum state” (quoting Panavision
International, LP v. Toeppen, 141 F.3d 1316, 1321 (9th Cir.
1998))).
In this case, there is no doubt that the defendants “engaged
in unabashedly malignant actions directed at [and] felt in this
forum.” Id. The plaintiffs’ allegations and evidence were that
bin Laden and al Qaeda orchestrated the bombing of the
American embassy in Nairobi, not only to kill both American
and Kenyan employees inside the building, but to cause pain and
sow terror in the embassy’s home country, the United States.
Nor were the plaintiffs’ allegations and evidence of contacts
with the United States limited to the Nairobi bombing. The
plaintiffs described an ongoing conspiracy to attack the United
States, with overt acts occurring within this country’s borders.
19
Putting to one side the acts that took place after the embassy
bombing (including the attacks on the World Trade Center and
the Pentagon on September 11, 2001), the plaintiffs pointed to
the 1993 World Trade Center bombing, as well as to the plot to
bomb the United Nations, Federal Plaza, and the Lincoln and
Holland Tunnels in New York.12
The plaintiffs thus amply made a prima facie showing that
bin Laden and al Qaeda “‘purposefully directed’ [their] activities
at residents” of the United States, Burger King, 471 U.S. at 472
(quoting Keeton, 465 U.S. at 774), and that this litigation results
from injuries to the plaintiffs “that ‘arise out of or relate to’
those activities,” id. (quoting Helicopteros Nacionales, 466 U.S.
12
In addition to the allegations of their complaint and pleadings,
the plaintiffs supported their contentions with, inter alia: a February
1998 fatwa issued by bin Laden and al Qaeda, calling upon Muslims
to kill Americans, military and civilian, “in any country in which it is
possible to do it,” Pls.’ Renewed Mot. for Entry of Default at 5; a
similar August 1996 fatwa, see id. at 3; two television interviews,
broadcast in the U.S. in 1997 and 1998, in which bin Laden exhorted
his followers to “take the fighting to America,” Third Supplemental
Filing in Supp. of Pls.’ Mot. for Entry of a Default at 2 (Oct. 10,
2001); the indictment and argument in a criminal case brought by the
United States regarding the Nairobi attack and the simultaneous
bombing of the American embassy in Tanzania, see United States v.
bin Laden, 98-CR-1023 (S.D.N.Y); President Bush’s address to
Congress, attributing the September 11, 2001 attacks and the embassy
bombings to the same group, see Second Supplemental Filing in Supp.
of Pls.’ Mot. for Entry of Default at Pls.’ Ex. 4 (Sept. 27, 2001); and
a British government report to the same effect, Third Supplemental
Filing at 2. The 9/11 Commission Report, cited by the plaintiffs before
this court, but issued after the district court’s decisions in this case,
provides substantial further support for the plaintiffs’ allegations. See
THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL
COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES at
47-71 (2004).
20
at 414). Bin Laden and al Qaeda therefore had “fair warning”
that their activities would “subject [them] to the jurisdiction” of
the United States. Id. (quoting Shaffer, 433 U.S. at 218).
The fact that injured Kenyans, not injured Americans, are
the plaintiffs in this case does not deny the court personal
jurisdiction over the defendants. See Calder v. Jones, 465 U.S.
783, 788 (1984) (“The plaintiff’s lack of ‘contacts’ [with the
forum] will not defeat otherwise proper jurisdiction.”); Keeton,
465 U.S. at 780 (“[The] plaintiff’s residence in the forum State
is not a separate requirement, and lack of residence will not
defeat jurisdiction established on the basis of the defendant’s
contacts.”).13 The defendants’ decision to purposefully direct
their terror at the United States, and the fact that the plaintiffs’
injuries arose out of one of those terrorist activities, should
suffice to cause the defendants to “reasonably anticipate being
haled into” an American court. Burger King, 471 U.S. at 474
(quoting World-Wide Volkswagen, 444 U.S. at 297). Of course,
a plaintiff’s citizenship may affect whether the court has subject
matter jurisdiction or the plaintiff has a cause of action. Here,
however, the plaintiffs have sued under the Alien Tort Claims
Act, which the Supreme Court has held to supply both subject
matter jurisdiction and a cause of action for a narrow set of
claims brought by aliens and involving violation of the law of
nations. See Sosa v. Alvarez-Machain, 124 S. Ct. 2739, 2754,
2761-62 (2004). The Mwani plaintiffs certainly have more than
a colorable argument that their claims fall within that narrow
13
Cf. Keeton, 465 U.S. at 776 (holding that a state had a
significant interest in redressing a libel action brought by nonresident
plaintiffs because, inter alia, “[f]alse statements of fact harm both the
subject of the falsehood and the readers of the statement,” and a state
“may rightly employ its libel laws to discourage the deception of its
citizens”).
21
set.14
It is true that even after “it has been decided that a
defendant purposefully established minimum contacts within the
forum . . . , these contacts may be considered in light of other
factors to determine whether the assertion of personal
jurisdiction would comport with ‘fair play and substantial
justice.’” Burger King, 471 U.S. at 476 (quoting International
Shoe, 326 U.S. at 320). But “where a defendant who
purposefully has directed his activities at forum residents seeks
to defeat jurisdiction, he must present a compelling case that the
presence of some other considerations would render jurisdiction
unreasonable.” Id. at 477. Here, the defendants purposefully
directed their activities at forum residents, and the fact that the
plaintiffs are Kenyans who were injured in the process is not a
consideration that would render the assertion of American
jurisdiction incompatible with substantial justice.
In sum, we conclude that there is “authorization for service
of summons on the defendant[s]” and a “constitutionally
sufficient relationship between the defendant[s] and the forum.”
Omni Capital, 484 U.S. at 104. As a consequence, the district
14
In Sosa, the Court determined that the First Congress
understood the ATCA to “recognize private causes of action for
certain torts in violation of the law of nations,” including “violation of
safe conducts, infringement of the rights of ambassadors, and piracy.”
124 S. Ct. at 2761. It concluded that “courts should require any claim
based on the present-day law of nations to rest on a norm of
international character accepted by the civilized world and defined
with a specificity comparable to the features of [those] 18th-century
paradigms.” Id. at 2761-62. The plaintiffs’ contention that bin Laden
and al Qaeda attacked the American embassy intending, among other
things, to kill American diplomatic personnel inside, would appear to
fall well within those paradigms. See id. at 2756 (noting that the 18th-
century paradigm included “assault against an ambassador”).
22
court “may exercise personal jurisdiction over” them. Id.
III
We now turn to the plaintiffs’ appeal from the dismissal of
their claims against the remaining defendant, Afghanistan. The
Foreign Sovereign Immunities Act “provides the sole basis for
obtaining jurisdiction over a foreign state in the courts of this
country.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993)
(internal quotation marks omitted). Under the FSIA, a foreign
state is immune from the jurisdiction of American courts unless
the case falls within a statutory exception. 28 U.S.C. § 1604;
see id. §§ 1605-1607. If no exception applies, the district court
lacks subject matter jurisdiction. Id. § 1604. If an exception
does apply, the district court has jurisdiction. Id. § 1330(a); see
Kilburn v. Socialist People’s Libyan Arab Jamahiriya, 376 F.3d
1123, 1126 (D.C. Cir. 2004); World Wide Minerals, Ltd. v.
Republic of Kazakhstan, 296 F.3d 1154, 1161 (D.C. Cir. 2002).
In the district court, the plaintiffs relied on two statutory
exceptions -- for implicit waiver, 28 U.S.C. § 1605(a)(1), and
for commercial activity, 28 U.S.C. § 1605(a)(2).15 The plaintiffs
15
The plaintiffs concede that another exception, 28 U.S.C. §
1605(a)(7), is inapplicable to this case. That provision “vitiates
immunity in cases ‘in which money damages are sought against a
foreign state for personal injury or death that was caused’” by
specified acts of terrorism “‘or the provision of material support or
resources . . . for such an act if such act or provision of material
support is engaged in by an official, employee, or agent of such
foreign state while acting within the scope of his or her office,
employment, or agency.’” Price v. Socialist People's Libyan Arab
Jamahiriya, 294 F.3d 82, 88 (D.C. Cir. 2002) (quoting 28 U.S.C. §
1605(a)(7)); see Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d
1024, 1032 (D.C. Cir. 2004). The provision does not apply, however,
unless the defendant foreign state “has been specifically designated by
23
have abandoned the former on appeal and now rely solely on the
latter, the third clause of which provides:
A foreign state shall not be immune from the
jurisdiction of courts of the United States . . . in any
case . . . in which the action is based . . . upon an act
outside the territory of the United States in connection
with a commercial activity of the foreign state
elsewhere and that act causes a direct effect in the
United States.
28 U.S.C. § 1605(a)(2). The FSIA defines “commercial
activity” as “either a regular course of commercial conduct or a
particular commercial transaction or act,” and states that “the
commercial character of an activity shall be determined by
reference to the nature of the course of conduct or particular
transaction or act, rather than by reference to its purpose.” Id.
§ 1603(d).
It is the defendant’s burden to prove that a plaintiff’s
allegations do not fall within the bounds of an FSIA exception.
See Kilburn, 376 F.3d at 1131. “‘If the defendant challenges
only the legal sufficiency of the plaintiff’s jurisdictional
allegations, then the district court should take the plaintiff’s
factual allegations as true and determine whether they bring the
case within any of the exceptions to immunity invoked by the
plaintiff.’” Id. at 1127 (quoting Phoenix Consulting, Inc. v.
the State Department as a ‘state sponsor of terrorism.’” Price, 294
F.3d at 89 (quoting 28 U.S.C. § 1605(a)(7)(A)). The plaintiffs
acknowledge that the United States has never so designated
Afghanistan, thus rendering § 1605(a)(7) inapplicable here and
depriving the district court of jurisdiction even to consider a claim
against Afghanistan absent some other exception to sovereign
immunity.
24
Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)).
Although Afghanistan does not expressly concede the truth of
the plaintiffs’ factual allegations, it argues that even if taken as
true, the allegations are insufficient to come within the
commercial activity exception. This amounts to a challenge to
the legal sufficiency of the allegations, and we must thus
“decide de novo whether [the alleged jurisdictional] facts are
sufficient to divest the foreign sovereign of its immunity.” Price
v. Socialist People’s Libyan Arab Jamahiriya, 389 F.3d 192, 197
(D.C. Cir. 2004).
The gravamen of the plaintiffs’ claim to the commercial
activity exception is well-described in their appellate brief:
Afghanistan had served as a place of refuge for
international terrorists since the 1980’s. The Taliban
actively aided Bin Ladin by assigning him guards for
security, permitting him to build and maintain terrorist
camps, and refusing to cooperate with efforts by the
international community to extradite him. Bin Laden
provided approximately $10-$20 million per year to
the Taliban in return for safe haven.
Appellants Br. at 27 (citations and internal quotation marks
omitted). But the plaintiffs’ contention that “[t]his conduct
constitutes commercial activity as defined by the FSIA and the
case law interpreting it,” id. at 34, cannot stand in the face of the
Supreme Court’s precedents, or those of this court.
In Nelson, the Supreme Court observed that the FSIA
largely codifies the “restrictive” theory of foreign sovereign
immunity, and that under that theory a state engages in
commercial activity
where it exercises “only those powers that can also be
25
exercised by private citizens,” as distinct from those
“powers peculiar to sovereigns.” Put differently, a
foreign state engages in commercial activity for
purposes of the restrictive theory only where it acts “in
the manner of a private player within” the market.
507 U.S. at 360 (quoting Republic of Argentina v. Weltover,
Inc., 504 U.S. 607, 614 (1992)). Moreover, the Court
emphasized that “whether a state acts ‘in the manner of’ a
private party is a question of behavior and not motivation.” Id.
(quoting Weltover, 504 U.S. at 614). As the Court elaborated:
[B]ecause the Act provides that the commercial
character of an act is to be determined by reference to
its “nature” rather than its “purpose,” the question is
not whether the foreign government is acting with a
profit motive or instead with the aim of fulfilling
uniquely sovereign objectives. Rather, the issue is
whether the particular actions that the foreign state
performs (whatever the motive behind them) are the
type of actions by which a private party engages in
“trade and traffic or commerce.”
Id. at 360-61 (quoting Weltover, 504 U.S. at 614) (citations
omitted). In accordance with this standard, the Nelson Court
rejected an argument that Saudi Arabia’s wrongful arrest,
imprisonment, and torture of the plaintiff, assertedly used by the
government to resolve a commercial dispute with the plaintiff,
could qualify a claim for the commercial activity exception. As
it explained:
Exercise of the powers of police and penal officers is
not the sort of action by which private parties can
engage in commerce. Such acts as legislation, or the
expulsion of an alien, or a denial of justice, cannot be
26
performed by an individual acting in his own name.
They can be performed only by the state acting as such.
Id. at 362 (internal quotation marks and alterations omitted).
This court has reached a similar conclusion in a different
setting. In Cicippio v. Islamic Republic of Iran, we held that
hostage-taking for profit did not fall within the commercial
activity exception. See 30 F.3d 164, 168 (D.C. Cir. 1994). This
was so, we said, because the act giving rise to jurisdiction must
itself take place in a commercial context. And kidnapping, we
concluded,
cannot possibly be described as an act typically
performed by participants in the market (unless one
distorts the notion of a marketplace to include a
hostage bazaar). That money was allegedly sought
from relatives of the hostages could not make an
ordinary kidnapping a commercial act any more than
murder by itself would be treated as a commercial
activity merely because the killer is paid.
Id.
Nelson and Cicippio foreclose the plaintiffs’ argument that
the transactions between the Taliban, Afghanistan’s former
rulers, and al Qaeda, a terrorist organization, qualify as
commercial activity. The plaintiffs attempt to characterize
Afghanistan’s harboring of terrorist camps as the
“paradigmatically mercantile” provision of land for money,
Appellants Reply Br. at 4, but such reductive logic would
transform the retaliatory torture in Nelson into “commercial
dispute resolution,” and the kidnapping in Cicippio into an
“exchange of goods for cash.” The key inquiry in determining
whether particular conduct constitutes commercial activity is not
27
to ask whether its purpose is to obtain money, but rather whether
it is “the sort of action by which private parties can engage in
commerce.” Nelson, 507 U.S. at 362. Granting refuge to
terrorist training camps is a uniquely sovereign act; it is not the
sort of benefit that a commercial landlord can bestow upon a
commercial tenant. As the plaintiffs themselves describe, refuge
involved both the “assigning [of] guards for security” and the
“refus[al] to . . . extradite” bin Laden. Appellants Br. at 27. But
the Court made clear in Nelson that this “[e]xercise of the
powers of police” and of authority over “the expulsion of an
alien” cannot “be performed by an individual acting in his own
name. They can be performed only by the state acting as such.”
507 U.S. at 362 (internal quotation marks omitted).
Finally, we also reject the plaintiffs’ contention that the
district court abused its discretion by denying them
jurisdictional discovery against Afghanistan. Although the
plaintiffs are correct that the “Federal Rules of Civil Procedure
generally provide for liberal discovery to establish jurisdictional
facts,” Goodman Holdings, 26 F.3d at 1147, “[n]evertheless, the
scope of discovery lies within the district court’s discretion.” Id.
And when we “do not see what facts additional discovery could
produce that would affect our jurisdictional analysis,” we must
“conclude the district court did not abuse its discretion in
dismissing the action when it did.” Id. That is the situation
here, because even assuming that the Taliban engaged in all of
the conduct alleged in the complaint, the commercial activity
exception would not apply.
IV
We affirm the district court’s dismissal of the plaintiffs’
claims against Afghanistan for lack of subject matter jurisdiction
under the Foreign Sovereign Immunities Act. We reverse the
dismissal of their claims against bin Laden and al Qaeda,
28
however, because the plaintiffs have satisfied their burden of
showing that the district court can properly exercise personal
jurisdiction over those defendants.
So ordered.