GSS Group Ltd. v. National Port Authority

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 2, 2012 Decided May 25, 2012

No. 11-7093

GSS GROUP LTD, ALSO KNOWN AS GLOBAL SECURITY SEALS
GROUP LTD,
APPELLANT

v.

NATIONAL PORT AUTHORITY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01322)

Stanley McDermott III, pro hac vice, argued the cause for
appellant. On the brief was Charles B. Wayne.

Jessica L. Ellsworth argued the cause for appellee. With
her on the brief was Lindsay D. Breedlove.

Before: GARLAND, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
 2

Concurring opinion filed by Senior Circuit Judge
WILLIAMS, with whom Senior Circuit Judge RANDOLPH joins.

RANDOLPH, Senior Circuit Judge: GSS Group, Ltd.,
brought this action to confirm a foreign arbitration award against
the National Port Authority of Liberia. The district court
dismissed the petition for lack of personal jurisdiction after
concluding that the Port Authority did not have sufficient
contacts with the United States. We affirm.

The Port Authority is a public corporation, organized under
the laws of Liberia, responsible for the management, operation,
and maintenance of Liberia’s port facilities. It is wholly owned
by the Liberian government, but, like many state-owned
enterprises, operates at some remove from the government itself.
The precise extent of this separation is a contested issue, taken
up in greater detail below.

On June 9, 2005, the Port Authority entered into an
agreement with GSS Group, a construction company
incorporated in the British Virgin Islands and headquartered in
Israel. The agreement called on GSS Group to build and operate
a container park at the port of Monrovia, Liberia’s capital.
Several later amendments resulted in a final contract dated
October 28, 2005. Although the parties intended the contract to
run for twelve and one-half years, it remained in effect for only
a few months.

The contract’s early demise resulted from a change in
Liberia’s government. The National Transitional Government
of Liberia – installed in 2003, during the aftermath of a four-
year civil war – handed over control to a new, democratically-
elected government in January 2006. Just a few weeks later, the
new government determined that the contract was “null and void
ab initio” because it had been awarded in violation of
 3

competitive bidding requirements. Although GSS Group and
the Port Authority had secured a single-source exemption from
those requirements, the new government claimed that the waiver
was “based on misrepresentation[s]” by GSS Group and
“collusion” between GSS Group and Transitional Government
officials.

GSS Group denied the new government’s allegations and
protested the contract’s cancellation. After attempting to resolve
the dispute informally, GSS Group invoked the contract’s
arbitration clause on March 15, 2006. That clause required the
parties to submit disputes regarding the contract’s “formation,
validity, interpretation, performance, termination, enforcement
or breach” to “binding arbitration” in London, England. The
arbitration clause further stated that disputes would be decided
“in accordance with the laws of England and Wales.”

The Port Authority resisted GSS Group’s arbitration
demand. It maintained that parallel proceedings in the Liberian
court system1 prevented Lord Mustill – the London arbitrator
selected by GSS Group – from adjudicating the dispute. Lord
Mustill rejected this argument in a March 3, 2008, “Ruling on
Jurisdiction” and went on to reach the merits of GSS Group’s
claim, without further participation by the Port Authority.
Ultimately, he held that the Port Authority had breached the
contract and was liable to GSS Group for $44,347,260 in

1
The Liberian Public Procurement and Concessions
Commission instituted proceedings on August 28, 2006, after GSS
Group had invoked the arbitration clause. The Commission alleged
that GSS Group and the Port Authority had both acted improperly, and
that the contract was invalid under Liberian law. A Liberian court
agreed to hear the case over GSS Group’s objection. On February 8,
2008, the court held that the relevant portions of the contract were
unenforceable.
 4

damages – a sum representing GSS Group’s project
expenditures and future lost profits.

On June 16, 2009, GSS Group filed a petition in the United
States District Court for the District of Columbia to confirm the
London arbitration award. The Port Authority moved to dismiss
the petition on several grounds, including lack of personal
jurisdiction. Its personal jurisdiction argument focused on two
main points. First, the Port Authority asserted that it was
“legally separate from the Liberian government.”2
Memorandum of Points and Authorities, GSS Grp. Ltd. v. Nat’l
Port Auth., No. 1:09-cv-01322-PLF, at 16 (D.D.C. Oct. 30,
2009) (“NPA Memorandum”). Separate legal status was
important since foreign sovereigns and their extensively-
controlled instrumentalities are not “persons” under the Fifth
Amendment’s Due Process Clause – and thus have no right to
assert a personal jurisdiction defense. See TMR Energy Ltd. v.
State Prop. Fund of Ukraine, 411 F.3d 296, 300-01 (D.C. Cir.
2005); Price v. Socialist People’s Libyan Arab Jamahiriya, 294
F.3d 82, 96-97 (D.C. Cir. 2002). In contrast to the Liberian
government and its agencies, the Port Authority portrayed itself
as an independent, albeit state-owned, corporation entitled to the
full panoply of due process protections. Second, the Port
Authority claimed that it could not be haled into the district
court because it did not have “minimum contacts” with the
United States. See Goodyear Dunlop Tires Operations, S.A. v.
Brown, 131 S. Ct. 2846, 2853 (2011). This contention relied on
the fact that the Port Authority had no offices or personnel in the
United States and “ha[d] never engaged in commercial activity
in the United States.” NPA Memorandum at 20.

2
This separation resulted from, among other things, the Port
Authority’s management of its own, unsubsidized finances; its ability
to sue and be sued in its own name; and its independent property
ownership.
 5

GSS Group’s reply did not contest the Port Authority’s
claim of juridical separateness or assert that the Port Authority
had minimum contacts with the United States. Instead, it argued
that the Port Authority satisfied all of the jurisdictional
prerequisites set forth in the Foreign Sovereign Immunities Act.
See 28 U.S.C. §§ 1330(b), 1603(a) & (b). The minimum
contacts standard did not “trump” these requirements, GSS
Group maintained, because foreign, state-owned corporations
“do[] not have a constitutional status different from” their
sovereign shareholders, “whether the[y] [are] independently
managed or not.” Memorandum in Opposition, GSS Grp. Ltd.
v. Nat’l Port Auth., No. 1:09-cv-01322-PLF, at 15 (D.D.C. Dec.
22, 2009).

The district court granted the motion to dismiss. GSS Grp.
Ltd. v. Nat’l Port Auth., 774 F. Supp. 2d 134 (D.D.C. 2011). It
agreed that the Port Authority was subject to statutory personal
jurisdiction under the Foreign Sovereign Immunities Act. Id. at
137. This did not end the inquiry, however, because the
“question remain[ed] whether the Constitution permit[ted] the
exercise of personal jurisdiction over the [Port Authority].” Id.
(emphasis added). In answering this question, the court stressed
the Port Authority’s uncontested claim of juridical separateness.
Id. at 139-41. Because GSS Group had not argued that the Port
Authority was an agent of the Liberian government, the rule that
closely-controlled instrumentalities have no due process rights
did not apply. Id. at 139 (citing TMR Energy, 411 F.3d at 301);
see also id. at 141.

Considering the Port Authority an independent entity, the
district court concluded that it was a “person” covered by the
Fifth Amendment. Id. at 139-41. “[C]ountless judicial
opinions,” the court explained, had afforded minimum contacts
protections to foreign corporations. Id. at 138 (citing Asahi
Metal Indus. Co. v. Superior Court, 480 U.S. 102 (1987);
 6

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.
408, 414-15 (1984)). Although none of these cases involved
state-owned corporations, the court found no basis for treating
them differently – at least in the absence of evidence that the
corporation acted as an agent of its sovereign owner. Id. at 139-
41 (distinguishing Price, 294 F.3d at 96-97). GSS Group had
not attempted to demonstrate such a relationship, and did not
identify any minimum contacts between the Port Authority and
the United States.3 Id. at 140-41. The court therefore held that
the Due Process Clause prevented it from exercising personal
jurisdiction over the Port Authority. Id.; see also FED. R. CIV.
P. 12(b)(2).

In passing, the district court noted a possible doctrinal
inconsistency between the Helicopteros line of civil procedure
cases and other decisions holding that aliens without property or
presence in the United States are not entitled to constitutional
protection. Id. at 139; see TMR Energy, 411 F.3d at 302 n.*
(citing United States v. Verdugo-Urquidez, 494 U.S. 259, 271
(1990); Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004)). It
was “not clear” to the district court “why foreign defendants,
other than foreign sovereigns, should be able to avoid the
jurisdiction of United States courts by invoking the Due Process
Clause when it is established in other contexts that nonresident
aliens without connections to the United States typically do not
have rights under the United States Constitution.” 774 F. Supp.
2d at 139. Nonetheless, the court concluded that it was “in no

3
In actions under the Foreign Sovereign Immunities Act, the
relevant frame of reference for the minimum contacts analysis is the
United States as a whole, rather than the specific jurisdiction in which
the suit is filed (here, the District of Columbia). See Theo. H. Davies
& Co. v. Republic of the Marshall Islands, 174 F.3d 969, 974 (9th Cir.
1998); accord Creighton Ltd. v. Gov’t of the State of Qatar, 181 F.3d
118, 127 & n.* (D.C. Cir. 1999).
 7

position to reject” the personal jurisdiction rule “enshrined in”
Helicopteros and similar cases. Id.

GSS Group moved to alter or amend the judgment under
Federal Rule of Civil Procedure 59(e), based on three new
arguments. The district court held that GSS Group had waived
these arguments by failing to raise them in its opposition to the
motion to dismiss. Accordingly, it denied the motion.

This appeal concerns both of the district court’s orders. We
review the order of dismissal de novo, see Second Amendment
Found. v. U.S. Conference of Mayors, 274 F.3d 521, 523 (D.C.
Cir. 2001), and the Rule 59(e) decision for abuse of discretion,
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per
curiam).

I

GSS Group’s petition arises under the Federal Arbitration
Act, 9 U.S.C. §§ 201 et seq., which codifies the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards,
opened for signature June 10, 1958, 21 U.S.T. 2517, 330
U.N.T.S. 3 (“New York Convention”). The Convention
obligates each contracting state to “recognize [foreign] arbitral
awards as binding and enforce them in accordance with” local
procedural law. Id. art. III. When the United States acceded to
the Convention, it reserved the right to recognize and enforce
“only those awards made in the territory of another Contracting
State.” 21 U.S.T. at 2566; see New York Convention art. I(3)
(allowing such reservations). The United Kingdom of Great
Britain and Northern Ireland, the site of the arbitral award, is a
party to the Convention. Thus, while the dispute between GSS
Group and the Port Authority has no connection to the United
States, the arbitration award is eligible for enforcement here.
 8

See 9 U.S.C. §§ 203, 207; Termorio S.A. E.S.P. v. Electranta
S.P., 487 F.3d 928, 933-34 (D.C. Cir. 2007).

The petition also relies on the Foreign Sovereign
Immunities Act’s jurisdictional provisions. Under the Act,
district courts have subject-matter jurisdiction over “any nonjury
civil action against a foreign state . . . as to any claim for relief
in personam with respect to which the foreign state is not
entitled to immunity.” 28 U.S.C. § 1330(a); see also id. §
1605(a)(6) (eliminating foreign states’ sovereign immunity with
respect to certain arbitration claims). The Act defines the term
“foreign state” expansively. It includes not only foreign
sovereigns, but also any “political subdivision of a foreign state
or an agency or instrumentality of a foreign state.” Id. §
1603(a). And the term “agency or instrumentality of a foreign
state” in turn covers any foreign corporation “a majority of
whose shares . . . [are] owned by a foreign state.” Id. § 1603(b).
Because the Port Authority is wholly owned by the Liberian
government, it qualifies as an “agency or instrumentality,” and
thus a “foreign state” for subject-matter jurisdiction purposes.

The Port Authority’s “foreign state” status has personal
jurisdiction ramifications as well. The Foreign Sovereign
Immunities Act specifies that “[p]ersonal jurisdiction over a
foreign state shall exist as to every claim for relief over which
the district courts have [subject-matter] jurisdiction under” §
1603(a) “where service has been made under” § 1608. 28
U.S.C. § 1330(b). In other words, “under the FSIA, ‘subject
matter jurisdiction plus service of process equals personal
jurisdiction.’” Price, 294 F.3d at 95 (quoting Practical
Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1548 n.11
(D.C. Cir. 1987)). The Port Authority does not contest the
manner in which it was served, and concedes that “[t]he FSIA
supplies a statutory basis for [exercising] personal jurisdiction
over” it. Appellee’s Br. 22.
 9

This brings us to the question presented: does the
Constitution impose additional, non-statutory personal
jurisdiction requirements, and if so, have those requirements
been met here?

II

GSS Group’s briefs dedicate significant attention to three
arguments raised for the first time in its Rule 59(e) motion. The
first of these arguments asserts that the Constitution is irrelevant
because the Port Authority acted as the Liberian government’s
agent, and thereby lost all due process protection. See TMR
Energy, 411 F.3d at 301-02. The second is that the district court
should have permitted jurisdictional discovery before ruling on
the motion to dismiss. The third is that if the Port Authority
does have due process rights, the Federal Arbitration Act and the
Foreign Sovereign Immunities Act provide it with all the
process it is due. Cf. Shaffer v. Heitner, 433 U.S. 186, 210 n.36
(1977).

These contentions misapprehend the role of Rule 59(e).4
“Rule 59(e) motions are aimed at reconsideration, not initial
consideration.” District of Columbia v. Doe, 611 F.3d 888, 896
(D.C. Cir. 2010) (quoting Nat’l Ecological Found. v. Alexander,
496 F.3d 466, 477 (6th Cir. 2007)). Accordingly, a “Rule 59(e)
motion may not be used to . . . raise arguments or present
evidence that could have been raised prior to the entry of
judgment.” 11 CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 2810.1, at 127-28 (2d ed. 1995).
GSS Group could have made all three of the arguments
identified above in its opposition to the Port Authority’s motion

4
The Rule states: “Motion to Alter or Amend a Judgment. A
motion to alter or amend a judgment must be filed no later than 28
days after the entry of the judgment.” FED. R. CIV. P. 59(e).
 10

to dismiss, but elected not to do so. See 774 F. Supp. 2d at 139,
141. The arguments therefore are waived. Doe, 611 F.3d at
896.

GSS Group insists that its Rule 59(e) arguments are not
waived because they were implicit in its original argument
against the motion to dismiss. For support, GSS Group points
to this footnote in its opposition memorandum:

In the event, however, that this Court considers it
material whether and to what extent the Government of
Liberia controls the NPA’s decision-making, then GSS
reserves the right to conduct appropriate discovery to
that end. The manner in which the NPA’s new
management cancelled the Contract strongly suggests
that the Government does in fact control the NPA to a
significant degree.

The district court did not abuse its discretion in rejecting this
argument. Firestone, 76 F.3d at 1208. The footnote’s
“reservation” had no effect; “[t]o get discovery” GSS Group had
to “ask for it.” Second Amendment Found., 274 F.3d at 525. As
for the bare, unsubstantiated suggestion that the Liberian
government controlled the Port Authority’s actions, the court
had no obligation to consider it. See Hutchins v. District of
Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (en banc)
(courts “need not consider cursory arguments made only in a
footnote”).

These shortcomings do not matter, GSS Group says,
because the district court committed “legal error” in its
jurisdictional analysis. We do not agree. The district court
faithfully applied the same minimum contacts standard used in
prior cases involving foreign corporations. See 774 F. Supp. 2d
at 141 (citing Asahi, 480 U.S. at 102; World-Wide Volkswagen
 11

Corp. v. Woodson, 444 U.S. 286, 297 (1980)). GSS Group
could have urged the court to apply a different standard, but it
failed to do so in a timely fashion. It cannot avoid the
consequences of that omission by labeling the district court’s
lack of telepathic powers as “legal error.” United States v.
Hewlett, 395 F.3d 458, 460 (D.C. Cir. 2005).

GSS Group also claims that “[a]ny question of waiver is .
. . moot” because the district court “passed upon” its additional
claims when it ruled on the Rule 59(e) motion. Appellant’s Br.
22; see Blackmon-Malloy v. U.S. Capitol Police Bd., 575 F.3d
699, 707-08 (D.C. Cir. 2009). Although the court described one
of GSS Group’s new arguments as “profoundly unpersuasive,”
it did so only after explaining that the argument had been
waived. A district court does not open the door to further
consideration of a forfeited claim by giving an alternative,
merits-based reason for rejecting it. Cf. New Castle Cnty. v.
Halliburton NUS Corp., 111 F.3d 1116, 1125 n.10 (3d Cir.
1997).

III

The sole argument GSS Group has preserved for our
consideration is its claim that foreign, state-owned corporations
have no due process rights. Distilled to its essence, GSS
Group’s point is that state-owned firms should be treated no
differently than their sovereign shareholders.

In Price, we held that “foreign states are not ‘persons’
protected by the Fifth Amendment.” 294 F.3d at 96. Several
factors influenced this conclusion, including the Supreme
Court’s ruling that the States of the Union are not “persons” for
Fifth Amendment purposes. See id. (citing South Carolina v.
Katzenbach, 383 U.S. 301, 323-24 (1966)). We explained that
“it would be highly incongruous to afford greater Fifth
 12

Amendment rights to foreign nations, who are entirely alien to
our constitutional system, than are afforded to the states, who
help make up the very fabric of that system.” Id. We also
emphasized that foreign governments interact with the United
States “as juridical equals on the level of international law and
diplomacy outside the constitutional system.” Id. at 97
(emphasis added) (quoting Lori Fisler Damrosch, Foreign States
and the Constitution, 73 VA. L. REV. 483, 521 (1987)). These
considerations put foreign sovereigns in a separate constitutional
category from “private entities” – one in which “[t]he
constitutional limits that have been placed on the exercise of
personal jurisdiction” do not apply. Id. at 98-99.

GSS Group contends that the same logic applies to foreign,
state-owned corporations. These entities, GSS Group claims,
are just as “alien to our constitutional system” as the sovereigns
that own them. Appellant’s Br. 24-25. Thus, “[i]f a [foreign]
sovereign does not have a ‘due process trump,’ neither does an
alien state-owned agency or instrumentality.” Id. at 26. Under
this rule, the Port Authority would be unable to oppose
enforcement of the arbitration award on jurisdictional grounds,
because it would not have a constitutional status different from
the Liberian government.

Binding precedent forecloses GSS Group’s argument. Both
the Supreme Court and this court have repeatedly held that
foreign corporations may invoke due process protections to
challenge the exercise of personal jurisdiction over them. See,
e.g., Goodyear, 131 S. Ct. at 2850-51, 2853; J. McIntyre Mach.,
Ltd. v. Nicastro, 131 S. Ct. 2780, 2785, 2789-90 (2011); Asahi,
480 U.S. at 113-16; Helicopteros, 466 U.S. at 413-14; FC Inv.
Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091-92 (D.C. Cir.
2008); Koteen v. Bermuda Cablevision, Ltd., 913 F.2d 973, 974-
 13

75 (D.C. Cir. 1990).5 In each of those instances, the foreign
defendant was just as “alien to our constitutional system” as the
Libyan government was in Price. 294 F.3d at 96. Yet the court
did not hesitate to afford the defendant the full measure of due
process protection.

It is true that these cases do not speak to the due process
rights of state-owned corporations. We addressed that issue in
TMR Energy, a case involving facts quite similar to those
presented here. TMR Energy, a Cyprian development
corporation, sought to enforce a foreign arbitration award
against the State Property Fund of Ukraine, an agency
responsible for Ukraine’s privatization program.6 TMR Energy,
411 F.3d at 298-99, 302. The State Property Fund conceded that
it was an “agency or instrumentality” subject to statutory
personal jurisdiction under the Foreign Sovereign Immunities
Act. Id. at 299. It nevertheless moved to dismiss because it
lacked minimum contacts with the United States, as required by
the Fifth Amendment’s Due Process Clause. Id. at 299-300
(citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

The State Property Fund was able to make this argument
because Price’s limit on due process protections “applie[d] only
to ‘an actual foreign government.’” Id. at 300 (quoting Price,
294 F.3d at 99). Left open was the question “whether other
entities that fall within the FSIA’s definition of ‘foreign state[,]’
including corporations in which a foreign state owns a majority
interest, could yet be considered persons under the Due Process
Clause.” Price, 294 F.3d at 99-100 (internal citation omitted).

5
But see infra pp. 15-18.
6
As in this case, the underlying dispute between the parties
had no connection to the United States whatsoever. See TMR Energy,
411 F.3d at 298-99.
 14

TMR Energy claimed that Transaero, Inc. v. La Fuerza Aerea
Boliviana, 30 F.3d 148 (D.C. Cir. 1994), a case interpreting the
Foreign Sovereign Immunities Act’s service of process
provisions, 28 U.S.C. § 1608 (a) & (b), provided the answer.
See TMR Energy, 411 F.3d at 300. Because the State Property
Fund allegedly qualified as a “foreign state” under Transaero,
TMR Energy concluded that it had to be classified as a foreign
state under the Due Process Clause as well. Id.

We rejected the argument, explaining that “a different
analysis is indicated where the issue is not service of process
under the FSIA but whether an agency or instrumentality of a
foreign state is entitled to the protection of the [D]ue [P]rocess
[C]lause.” Id. at 301. To answer that question, we relied instead
on the Supreme Court’s decision in First National City Bank v.
Banco Para el Comercio Exterior de Cuba, 462 U.S. 611 (1983)
(“Bancec”). Id. Bancec addressed the liability of a foreign,
state-owned firm for the acts of its sovereign parent. See 462
U.S. at 613-14, 620-30. The Supreme Court held that “[d]ue
respect for the actions taken by foreign sovereigns and for
principles of comity between nations” required a baseline rule
“that government instrumentalities established as juridical
entities distinct and independent from their sovereign should
normally be treated as such.” Id. at 626-27. In other words,
state-owned firms generally are not liable for their government’s
actions. This presumption of separateness gives way only if a
foreign “corporate entity is so extensively controlled by its
owner that a relationship of principal and agent is created,” id.
at 629, or when “broader equitable principle[s]” dictate that
separate treatment “would work fraud or injustice,” id. (quoting
Taylor v. Standard Gas & Electric Co., 306 U.S. 307, 322
(1939)).

TMR Energy extended the Bancec analysis to the
constitutional realm, holding that Bancec “must govern” the
 15

question whether a foreign instrumentality has due process
rights under the Fifth Amendment. 411 F.3d at 301 (citing
Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d
438, 446-47 (D.C. Cir. 1990)). The upshot of that rule is
relatively straightforward. Whenever a foreign sovereign
controls an instrumentality to such a degree that a principal-
agent relationship arises between them, the instrumentality
receives the same due process protection as the sovereign: none.
That was the result in TMR Energy, based on Ukraine’s
extensive legal, managerial, and financial control of the State
Property Fund. See 411 F.3d at 302. On the other hand, if an
instrumentality does not act as an agent of the state, and separate
treatment would not result in manifest injustice, see Bancec, 462
U.S. at 629, the instrumentality will enjoy all the due process
protections available to private corporations. Far from being
“irrelevant,” as GSS Group claims, the extent of a state-owned
corporation’s juridical independence plays a dispositive role in
the constitutional analysis. See TMR Energy, 411 F.3d at 301;
see also Frontera Res. Azerbaijan Corp. v. State Oil Co. of the
Azerbaijan Republic, 582 F.3d 393, 400-01 (2d Cir. 2009)
(adopting the TMR Energy rule).

GSS Group responds that “this Court has not hitherto
suggested much less held that an agency or instrumentality loses
due process protection only if, as in TMR Energy, it is controlled
by its foreign-state parent.” Appellant’s Reply Br. 8. The
implication is that there are other reasons why a foreign
instrumentality might not fall within the Fifth Amendment’s
protective sweep. For instance, a footnote in TMR Energy
suggested, while “express[ing] no view upon the question,” that
“[i]t is far from obvious that even an independent [foreign
instrumentality] would be entitled to the protection of the [F]ifth
[A]mendment.” 411 F.3d at 302 n.*.
 16

The footnote cites two cases, each of which held that aliens
without property or presence in the sovereign territory of the
United States have no constitutional rights. Id. (citing Verdugo-
Urquidez, 494 U.S. at 271; Jifry, 370 F.3d at 1182). Similar
cases abound. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693
(2001); Johnson v. Eisentrager, 339 U.S. 763, 783-84 (1950);
Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir. 2009),
vacated and remanded, 130 S. Ct. 1235 (2010) (per curiam),
reinstated, 605 F.3d 1046 (D.C. Cir. 2010); 32 Cnty. Sovereignty
Comm. v. Dep’t of State, 292 F.3d 797, 799 (D.C. Cir. 2002);
Harbury v. Deutch, 233 F.3d 596, 603-04 (D.C. Cir. 2000),
rev’d on other grounds sub nom. Christopher v. Harbury, 536
U.S. 403 (2002); People’s Mojahedin Org. of Iran v. U.S. Dep’t
of State, 182 F.3d 17, 22 (D.C. Cir. 1999); Pauling v. McElroy,
278 F.2d 252, 254 n.3 (D.C. Cir. 1960) (per curiam). The
district court in this case observed that these decisions, if taken
to their logical conclusion, might mean that no foreign entity
could assert a due process–personal jurisdiction defense, at least
so long as it lacked property or presence within the United
States. See 774 F. Supp. 2d at 139. Others have also suggested
that the decisions just cited could be seen as in conflict with the
rule expressed in the Helicopteros line of civil procedure cases;
if a foreign entity has no constitutional rights, its lack of
minimum contacts is immaterial. See Austen L. Parrish,
Sovereignty, Not Due Process: Personal Jurisdiction Over
Nonresident Alien Defendants, 41 WAKE FOREST L. REV. 1, 28-
33 (2006); Gary A. Haugen, Personal Jurisdiction and Due
Process Rights for Alien Defendants, 11 B.U. INT’L L.J. 109,
115-17 (1993); see also TMR Energy, 411 F.3d at 301-02 & n.*.
After all, the “personal jurisdiction requirement is not a
structural limitation on the power of courts,” Price, 294 F.3d at
98, but “a function of the individual liberty interest preserved by
the Due Process Clause,” Nicastro, 131 S. Ct. at 2798 (quoting
Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee,
456 U.S. 694, 703 n.10 (1982)).
 17

Yet it may be that the cases can be reconciled. When a
foreign corporation is summoned into court, it is being forced to
defend itself. To do so, the corporation must appoint a
representative to act for it – that is, an attorney. See Bristol
Petroleum Corp. v. Harris, 901 F.2d 165, 166 n.1 (D.C. Cir.
1990). In opposing personal jurisdiction on due process grounds
the corporation, through its attorney, makes itself present. See
Int’l Shoe, 326 U.S. at 316. And since it has been forced to
appear in the United States, at least for that limited purpose,7 it

7
At common law, the exercise of personal jurisdiction was
tied to physical presence. See Burnham v. Superior Court, 495 U.S.
604, 610-14 (1990) (plurality opinion). A “general appearance” of
any kind, such as a motion to dismiss for failure to state a claim, made
a nonresident defendant present and thus subject to the court’s
authority. See Pollard v. Dwight, 8 U.S. (4 Cranch) 421, 428-29
(1808); Gerber v. Riordan, 649 F.3d 514, 521 (6th Cir. 2011) (Moore,
J., concurring). And in the case of a corporate defendant, the
corporation made itself present through the appearance of its attorney.
See St. Louis & S.F. Ry. Co. v. McBride, 141 U.S. 127, 128, 130
(1891). The special appearance doctrine evolved as an exception to
the general appearance rule. It enabled a nonresident defendant to
contest the court’s jurisdiction “without thereby subjecting [it]self to
the power of the court generally.” Orange Theatre Corp. v. Rayherstz
Amusement Corp., 139 F.2d 871, 874 (3d Cir. 1944) (en banc); see
also Harkness v. Hyde, 98 U.S. 476, 479 (1878). The doctrine relied
on a legal fiction; although counsel appeared on the defendant’s
behalf, courts allowed defendants to escape the consequences of the
appearance “as a matter of grace” and “sound public policy.” Orange
Theatre, 139 F.3d at 874.

Rule 12 of the Federal Rules of Civil Procedure abolished the
distinction between special appearances and general appearances. 5B
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE
AND PROCEDURE § 1344 (3d ed. 2004). This relieved nonresident
defendants of the need “to appear specially or employ any particular
set of words to challenge a federal court’s personal jurisdiction.” Id.
 18

is entitled to the protection of the due process clause as
interpreted in International Shoe and later decisions involving
foreign corporate defendants. Cf. Zadvydas, 533 U.S. at 693.
An alternative reconciliation might lie in the idea that when a
United States court exercises jurisdiction over a foreign
corporate defendant it inflicts damage on that defendant (at a
minimum in the form of legal costs, but possibly in the form of
a judgment) in the United States.

We need not embrace this line of reasoning or resolve the
possible conflict described above, for three reasons. First, GSS
Group waived any reliance on Verdugo-Urquidez and its
progeny at oral argument. See Oral Arg. Recording at 11:50-
12:55, 22:25-22:46. Second, Bancec is the exclusive means for
determining whether a foreign, state-owned corporation is a
“person” for Fifth Amendment purposes. TMR Energy’s
holding that Bancec “must govern” is a precedent binding on us.
411 F.3d at 301. Third, the Supreme Court has reaffirmed as
recently as last year that foreign corporations are entitled to due
process protection, despite the fact they have no meaningful
connection to the United States. See, e.g., Goodyear, 131 S. Ct.
at 2853; Nicastro, 131 S. Ct. at 2787. In fact, the entirely
foreign nature of the defendants in Goodyear, Nicastro, Asahi,
and Helicopteros is what enabled them to prevail. See, e.g.,
Goodyear, 131 S. Ct. at 2854. These decisions leave the
unmistakable impression that United States courts may not
exercise personal jurisdiction over a foreign corporation unless

But it did not eliminate the logical consequence of a defensive court
appearance: presence within the forum. A defendant is just as
“present” when it files a Rule 12 motion as it is when it makes a
special appearance. While this does not affect the question of personal
jurisdiction, it seems to bear on the separate and antecedent question
whether a party has due process rights.
 19

the corporation has “minimum contacts” with the relevant
forum. See id. at 2853.

The bottom line is this: the Port Authority claimed to be an
independent juridical entity in its motion to dismiss, and GSS
Group failed to contest that characterization. GSS Group’s
omission left intact the Bancec presumption, which, under TMR
Energy, guarantees the Port Authority treatment as a separate
“person” entitled to due process protection. That protection
includes the right to assert a minimum contacts defense. GSS
Group has not identified any connection between the Port
Authority and the United States; indeed, its brief concedes that
none exists. The district court therefore correctly dismissed the
petition for lack of personal jurisdiction.

Affirmed.
 WILLIAMS, Senior Circuit Judge, with whom Senior
Circuit Judge RANDOLPH joins, concurring: I concur in the
court’s opinion and judgment but write separately to express
concern about our decision in TMR Energy v. State Property
Fund of Ukraine, 411 F.3d 296 (D.C. Cir. 2005), which
extended First National City Bank v. Banco Para el Comercio
Exterior de Cuba (“Bancec”), 462 U.S. 611 (1983), to a
wholly new domain. The result was to constitutionalize an
issue quite unnecessarily.

In Bancec the Court considered whether a U.S. firm, sued
in New York by a bank wholly owned by the Cuban
government, could claim as a “set off” the losses inflicted on
it by the Cuban government’s seizure of its Cuban assets. The
Court held that it could do so, invoking a set of corporate veil-
piercing principles. While “government instrumentalities
established as juridical entities distinct and independent from
their sovereign should normally be treated as such,” 462 U.S.
at 626-27, that norm could be overcome under a variety of
circumstances—namely, where the “corporate entity is so
extensively controlled by its owner that a relationship of
principal and agent is created,” id. at 629, and where honoring
the distinction “would work fraud or injustice” or “defeat
legislative policies,” id. at 629-30.

At the time we decided TMR, three arguably relevant
lines of authority were outstanding. First was Bancec’s veil-
piercing decision in the context of U.S. firms’ efforts to set off
foreign states’ obligations against claims by a state-owned
entity. Second was our own decision in Price v. Socialist
People’s Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir.
2002), holding that a foreign state was not a “person” for
purposes of the due process clause and its requirement of
“minimum contacts” for personal jurisdiction. In doing so we
pointed out that foreign states were the juridical equals of the
United States, and that if a state perceived that it had been
 2

improperly dragged into a U.S. court, it would have available
to it “a panoply of mechanisms in the international arena
through which to seek vindication or redress.” Id. at 98.
Given that the federal courts themselves had “relied on
principles of comity and international law to protect foreign
governments in the American legal system,” id. at 97, we held
that “[t]hese mechanisms [the ones available to foreign states
in the international arena], not the Constitution, set the terms
by which sovereigns relate to one another,” id. at 98
(emphasis added).

Third were Supreme Court applications of the due
process clauses’ “minimum contacts” analysis to private
foreign corporations in determining whether they could be
subject to U.S. courts’ jurisdiction. See, e.g., Asahi Metal
Indus. Co. v. Superior Court, 480 U.S. 102 (1987).

In TMR Energy we noted both (1) that the cases applying
minimum contacts analysis to foreign corporations appeared
to rest on a hitherto unchallenged assumption of the due
process clauses’ applicability, and (2) that in light of decisions
by this court and the Supreme Court that aliens without
property or presence in the United States do not receive
constitutional protections, see, e.g., United States v. Verdugo-
Urquidez, 494 U.S. 259, 271 (1990), it was “far from obvious
that [a wholly independent foreign state-owned corporation]
would be entitled to the protection of the fifth amendment.”
411 F.3d at 302 n.*. But, partly because of TMR’s failure to
argue the point and partly because of the approach we took
(finding against the foreign entity on other grounds, described
below), we had no need to resolve either point.

Instead, we looked at the foreign entity in question
through the lens of Bancec. We posed the question “whether
the SPF [the State Property Fund of Ukraine] has a
constitutional status different from that of the State of
 3

Ukraine.” Id. at 301. Finding that “the State of Ukraine had
plenary control over the SPF,” we ruled that the SPF, “like its
principal . . . is not a ‘person’ for purposes of the due process
clause and cannot invoke the minimum contacts test to avoid
the personal juridiction of the district court.” Id. at 301-02.

But we never really explained the metamorphosis of
Bancec, which arose as the solution to a set-off issue, into a
constitutional doctrine for foreign state-owned entities. That
extension yields several anomalies. While Bancec explicitly
took note of “legislative policies,” 462 U.S. at 630,
constitutionalization of the issue of suing foreign state-owned
corporations stands as a potential obstacle to solutions that
Congress might find sensible. Our own decision in Price,
noting the availability of diplomatic measures, invites us as a
country (courts as well as the political branches) to take note
of the behavior of foreign states and the structure of
international relations. Some countries have adopted “statutes
that authorize their courts to exercise jurisdiction over a
foreign defendant whenever the defendant’s nation would do
the same in analogous situations.” Austen L. Parrish,
Sovereignty, Not Due Process: Personal Jurisdiction over
Nonresident Alien Defendants, 41 WAKE FOREST L. REV. 1,
49 (2006). A U.S. statute mimicking such foreign solutions,
however sensible as a negotiating strategy, would run afoul of
TMR’s constitutionalization of the issue—as applied, for
instance, to corporations of a state that allowed suits against
our corporations regardless of minimum contacts. State-
owned corporations, of course, will often have access to the
diplomatic mechanisms alluded to in Price, and their use of
that access might well precipitate the sort of negotiated
solutions contemplated there.

More generally, we reasoned in Price that extending due
process protections to foreign states would “frustrate the
United States government’s clear statutory command” to
 4

subject foreign states to the jurisdiction of the federal courts
under some circumstances. 294 F.3d at 98-99. In the Foreign
Sovereign Immunities Act Congress defined circumstances
when foreign states and their instrumentalities may be subject
to the jurisdiction of United States courts, see 28 U.S.C. §§
1602, 1605, and it is not at all clear why that determination
should not be given full effect.

These concerns suggest that in a suitable case it may be
valuable for courts to reconsider both the merits of the
assumption in Asahi Metal and kindred cases that private
foreign corporations deserve due process protections, and
(perhaps more significantly) the application of that
assumption to entities owned by a foreign state but not subject
to the state’s plenary control or otherwise treated as a state.

This said, if the Supreme Court were to find the due
process clauses inapplicable to the question of jurisdiction
over private foreign corporations, or if we were to do the same
for state-owned but not state-equivalent entities, it would not
follow ineluctably that they could henceforth be exposed to
the United States courts’ jurisdiction regardless of minimum
contacts. Quite apart from the instances where the FSIA itself
imposes requirements substantially equivalent to minimum
contacts, see 28 U.S.C. § 1605(a)(2); see also S & Davis
Intern., Inc. v. Republic of Yemen, 218 F.3d 1292, 1304 (11th
Cir. 2000) (noting similarity of the standards), courts might
well extend the current practice on the ground of its
substantial duration (most clearly in the case of private
corporations), but subject to any congressional provisions to
the contrary. Such an approach would be quite different from
the constitutional straightjacket that appears to prevail
currently.