United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2008 Decided October 24, 2008
No. 07-7141
AHMAD CHALABI, ET AL.,
APPELLANTS
v.
HASHEMITE KINGDOM OF JORDAN, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 04cv01353)
John J.E. Markham II argued the cause and filed the
briefs for appellants.
Christopher M. Curran argued the cause for appellees.
With him on the brief were Nicole E. Erb and Antonia R.
Soares.
Before: RANDOLPH, ROGERS, and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge TATEL.
2
TATEL, Circuit Judge: On August 11, 2004, Ahmad
Chalabi sued the Hashemite Kingdom of Jordan in federal
court, alleging a civil RICO conspiracy and various torts
related to Jordan’s seizure of his bank some fifteen years
earlier. Finding that Chalabi had alleged facts supporting
jurisdiction over a foreign sovereign, the district court
dispensed with jurisdictional discovery and dismissed
Chalabi’s claims as time-barred. We agree with both the
approach and the result, and so affirm.
I.
Because the district court granted Jordan’s motion to
dismiss, Chalabi’s allegations must be taken as true. E.g.,
Rasul v. Myers, 512 F.3d 644, 654 (D.C. Cir. 2008). Read
with that uncritical eye, the complaint relates the following.
Ahmad Chalabi, an opponent of Saddam Hussein’s
regime in Iraq, founded Petra Bank in Jordan in 1977.
Compl. ¶ 15. Over the next twelve years, he grew Petra into
Jordan’s second-largest bank, with a net worth of thirty
million Jordanian dinars or about $42,000,000 at today’s
rates. Id. ¶¶ 26-28. As Chalabi’s status as an international
financier grew, so too did his vociferous criticism of Saddam
Hussein and the Jordanian government, which he charged
with complicity in Saddam’s wrongdoings. Id. ¶¶ 31-33.
According to Chalabi, his political enemies in Jordan
returned to power in the spring of 1989 when Mudhar Badran
reassumed the prime ministership and appointed Muhammed
Saeed El-Nabulsi governor of the central bank. Compl. ¶ 21.
Nabulsi had occupied this position until 1985, having spent
the intervening period in Iraq associating with the “notorious”
Iraqi security agency known as the “Mukhabarat.” Id. ¶¶ 20-
21. Chalabi alleges that his public criticisms of Saddam and
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the Jordanian government angered Nabulsi and Badran,
leading them to plot a state takeover of Petra Bank under false
pretenses. Id. ¶¶ 34, 38. At the same time, one of Nabulsi’s
deputies delivered an explicit threat, telling Chalabi that
Nabulsi’s sole purpose in returning to Jordan was “getting”
him. Id. ¶ 38.
Jordan swiftly laid the groundwork for seizing the bank.
In June 1989, the government circulated a denunciatory
leaflet entitled “Save What Remains of Petra Bank,” designed
to discredit Chalabi and to undermine the confidence of
Petra’s depositors. Compl. ¶ 39. According to the complaint,
Nabulsi simultaneously convinced other Jordanian banks to
cease overnight deposits with Petra, reducing its operating
reserves. Id. ¶ 40. Nabulsi then closed the central bank’s
discount window to Petra, preventing it from obtaining
operating cash and precipitating a liquidity crisis. Id. ¶ 41.
The following day, acting under a martial law decree from
Jordan’s Economic Security Committee, the state seized the
bank by military force. Id. ¶¶ 42-45. Nabulsi ordered
Chalabi to remain in Jordan and to serve on the bank’s new
management committee, but according to Chalabi, this was a
pretext to facilitate his kidnapping by the Mukhabarat.
Warned of the plot, Chalabi fled Jordan on August 7, 1989,
never to return. Id. ¶¶ 46-47.
Jordan’s management rapidly—and, Chalabi says,
intentionally—decimated the bank’s balance sheet. Two
weeks after the takeover, the new management committee
foreswore responsibility for the actions of prior management,
effectively eliminating the bank’s ability to do business.
Compl. ¶¶ 50-51. Chalabi alleges that chicanery with the
books created an appearance of insolvency, allowing Nabulsi
to exploit his role as regulator in order to loot Petra of its
assets. Id. ¶¶ 52-54. From its pre-seizure capital of 30
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million dinars, Petra suddenly spiraled at least 157 million
dinars into the red. Id. ¶ 52. Its United States subsidiary,
PIBC, suffered a similar fate. Id. ¶ 55. Then, according to
Chalabi, Nabulsi parlayed the cooked books into an Arthur
Andersen audit report confirming massive shareholder debt,
id. ¶ 59, which he later used as fodder for final liquidation of
Petra Bank, id. ¶ 60.
Less than one year after the takeover, Jordan issued a
liquidation decree circumventing all ordinary Jordanian
bankruptcy law, giving Nabulsi “unlimited power and
discretion” as liquidator and completely wiping out Petra’s
shareholders by dissolving the bank under the purported
condition of massive debt. Compl. ¶¶ 59, 62-64 (citing ESC
Resolution No. 4/90 (July 15, 1990), as amended by ESC
Resolution No. 7/90 (Sept. 20 1990)). That decree set an
order of priority and provided that “the balance of the assets
shall be divided pari passu among the creditors.” ESC
Resolution No. 4/90 ¶ 17(a)(5). Although some debts were to
be paid, the decree made no provision of any kind for equity
holders such as Chalabi. At the same time, Chalabi was tried
in absentia for embezzlement. Following what he describes
as a “sham trial” premised on evidence obtained through
torture, intimidation, and fraud, Chalabi was convicted in
April 1992. Compl. ¶¶ 68-75.
The complaint alleges that Nabulsi has since used his
power as liquidator to shuttle Petra’s assets to himself, his
friends, and the politically connected. Compl. ¶¶ 65-66.
Other than the continued mismanagement of the assets that
Jordan seized and allotted to creditors in 1990, however, the
complaint alleges little else since Chalabi’s conviction. It
does charge that Jordan sought Chalabi’s extradition in 2004
and that it smeared him as an “embezzler” and “thug,” id. ¶
5
78, but it brings no claim for defamation amongst its other
common-law tort and civil RICO claims.
Satisfied that Chalabi had alleged—if not shown—facts
sufficient to overcome Jordan’s sovereign immunity under the
“commercial activity” exception to the Foreign Sovereign
Immunities Act, 28 U.S.C. § 1605(a)(2), the district court
nonetheless held that the statutes of limitation applicable to
Chalabi’s claims provided a straightforward, “non-merits
ground” for resolving the case. Chalabi v. Hashemite
Kingdom of Jordan, 503 F. Supp. 2d 267, 273 (D.D.C. 2007).
According to the district court, Chalabi missed the deadline
by more than a decade: the three-year period for common law
torts and the four-year period for civil RICO began running in
1989 when, according to the complaint itself, Chalabi became
aware of the seizure, the planned kidnapping, and Nabulsi’s
designs on his destruction. Id. at 273-74. The district court
thus dismissed Chalabi’s claims as untimely, obviating any
need for jurisdictional discovery.
On appeal, Chalabi does not dispute that the limitations
clock began running on his claims in 1989. Instead, he argues
that those claims are saved from staleness by the continuing
tort doctrine.
II.
We must first satisfy ourselves whether, in deferring final
resolution of Jordan’s claim of foreign sovereign immunity,
the district court properly moved the timeliness issue to the
head of the line. Jordan’s immunity claim implicates our
jurisdiction, see 28 U.S.C. § 1604 (“[A] foreign state shall be
immune from the jurisdiction of the courts of the United
States and of the States except as provided in . . . this
chapter.”), and under the rule in Steel Co. v. Citizens for a
6
Better Environment, 523 U.S. 83, 94-95 (1998), we may not
assume jurisdiction even to follow a better-marked path to
disposition. But this rule is not absolute. As the district court
explained, “‘a federal court has leeway to choose among
threshold grounds for denying audience to a case on the
merits.’” Chalabi, 503 F. Supp. 2d at 273 (emphasis added)
(quoting Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,
127 S. Ct. 1184, 1191 (2007)). The district court decided that
because timeliness in this case represented a threshold ground
for denying audience rather than a judgment on the merits, it
could be reached before a final decision on the jurisdictional
question of foreign immunity. Chalabi, 503 F. Supp. 2d at
273.
As timeliness has both threshold and merits
characteristics, we would face a difficult question if Steel Co.
actually applied to this case. But it doesn’t. Steel Co.
requires that we prioritize the jurisdictional issue only when
the existence of Article III jurisdiction is in doubt; that
decision “explicitly recognized the propriety of addressing the
merits where doing so made it possible to avoid a doubtful
issue of statutory jurisdiction.” Kramer v. Gates, 481 F.3d
788, 791 (D.C. Cir. 2007) (citing Steel Co., 523 U.S. at 96-97
& n.2). There is no Article III question here: Jordan’s claim
of immunity concerns only the limits of our statutory
jurisdiction under the Foreign Sovereign Immunities Act.
Thus, even if a decision on timeliness qualifies as a
“‘judgment on the merits,’” Sinochem, 127 S. Ct. at 1192
(quoting Intec USA, LLC v. Engle, 467 F.3d 1038, 1041 (7th
Cir. 2006)), Steel Co.’s bar on hypothetical jurisdiction poses
no obstacle to resolving it first.
This outcome conforms to both common sense and
congressional intent. It would hardly respect Jordan’s
sovereignty to require it to pay for jurisdictional discovery on
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claims plainly barred. In one foreign immunity case before
Steel Co., we exercised pendent appellate jurisdiction and
resolved a statute of limitations question precisely in order to
avoid a difficult question of statutory jurisdiction. See
Rendall-Speranza v. Nassim, 107 F.3d 913, 917 (D.C. Cir.
1997). Nothing in the Supreme Court’s recent cases requires
us to depart from that sensible course.
III.
Turning to the timeliness issue, which we review de
novo, see Jung v. Mundy, Holt & Mance, P.C., 372 F.3d 429,
432 (D.C. Cir. 2004), we have no trouble agreeing with the
district court that Chalabi’s claims are time-barred.
Chalabi admits that the statute of limitations for his
common-law tort claims is three years, and he does not
dispute that his claim accrued when he learned of the plot
against him in 1989. Nonetheless, he maintains that he
properly pled a “continuing tort.” In the District of Columbia,
this doctrine requires that Chalabi allege “(1) a continuous
and repetitious wrong, (2) with damages flowing from the act
as a whole rather than from each individual act, and (3) at
least one injurious act within the limitation period.” Beard v.
Edmondson & Gallagher, 790 A.2d 541, 547-48 (D.C. 2002)
(internal quotation marks and ellipsis omitted). And even on
the continuing tort theory, Chalabi recognizes that, because he
was aware of his injury as of 1989, his recovery is limited to
injuries sustained within the limitations period that
immediately preceded the filing of his complaint. Appellants’
Reply Br. 2 (citing Beard, 790 A.2d at 547-48). Thus, to have
any prospect of even limited recovery, Chalabi must at a
minimum show that he was injured within that time frame.
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Chalabi’s own complaint, and the liquidation decree that
it quotes, preclude such a showing. See Abhe & Svoboda, Inc.
v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007) (“In
determining whether a complaint states a claim, the court may
consider the facts alleged in the complaint, documents
attached thereto or incorporated therein . . . .” (internal
quotation marks omitted)). Chalabi’s claim of continuing
injury relates to the ongoing dispersal of Petra’s assets “at a
fraction of their actual worth, to cronies.” Appellants’ Reply
Br. 2; see also Compl. ¶ 66. Although these allegedly
fraudulent sales might harm Petra’s creditors, who were
allocated “the balance of the assets” in the 1990 liquidation
decree, see ESC Resolution No. 4/90 ¶ 17(a)(5), they do not
harm Chalabi, who lost whatever interest he had in the bank
on liquidation. His complaint itself states that the bank was
seized and liquidated by an extraordinary decree that gave
Nabulsi “unlimited power and discretion to carry out the
liquidation and to do so without regard to any law.” Compl. ¶
63. The decree stated that “[a]ll Petra Bank assets and funds
shall be attached by the liquidator,” ESC Resolution No. 4/90
¶ 6(a), and made no provision for equity holders like Chalabi
in distributing the balance of Petra’s assets. Id. ¶ 17(a)(5). It
thereby extinguished Chalabi’s interest as a shareholder as of
the date of the decree. Chalabi’s position is akin to that of a
car-theft victim who alleges that his vehicle was stolen a
decade ago and now complains that the thief is leasing it at
below-market rates. Any current mismanagement is being
visited upon someone else’s asset.
To be sure, Chalabi alleges that he “is a shareholder” of
Petra Bank. Compl. ¶ 14 (emphasis added). But given the
contradictory elements of his own complaint recited above,
that allegation is without consequence. See Kaempe v. Myers,
367 F.3d 958, 963 (D.C. Cir. 2004) (“Nor must we accept as
true the complaint’s factual allegations insofar as they
9
contradict exhibits to the complaint or matters subject to
judicial notice.”). What Chalabi once held was a partial
ownership stake in Petra; the stock certificates he may still
hold are but meaningless paper. As with the tardy car-theft
victim described above, the fact that a shareholder still has
paper title to the long-stolen property does not make the claim
of theft any less stale, nor does it create injury from the
property’s misuse when the plaintiff’s actual interest is long
gone.
The absence of recent injury likewise bars Chalabi’s
RICO claim. See Klehr v. A.O. Smith Corp., 521 U.S. 179,
190 (1997) (dismissing RICO claim where plaintiffs had not
“shown how any new act could have caused them harm over
and above the harm that the earlier acts caused,” even though
they alleged predicate acts that occurred within the limitations
period). And on neither count do we see merit in Chalabi’s
contention that he is injured by Jordan’s “ongoing failure to
return” the wrongfully seized property, Appellant’s Br. 21.
“[T]he mere failure to right a wrong and make plaintiff whole
cannot be a continuing wrong which tolls the statute of
limitations, for that is the purpose of any lawsuit and the
exception would obliterate the rule.” Fitzgerald v. Seamans,
553 F.2d 220, 230 (D.C. Cir. 1977).
Although Chalabi’s complaint does allege recent smears
and defamations, Compl. ¶¶ 76-78, it presses them not as new
injuries, but as “wire communications” for purposes of the
RICO claim. Id. Nowhere does Chalabi claim that these
actions alone would rehabilitate the prior claims as continuing
torts. Nor could he. These acts would be discrete wrongs, not
part of “a continuous and repetitious wrong . . . with damages
flowing from the act as a whole,” as required by the
continuing tort doctrine. Beard, 790 A.2d at 548 (internal
quotation marks omitted).
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As a final effort to claim recent injury, Chalabi argues
that this is in part a derivative suit and that Jordan’s
continuing mismanagement is injuring the bank. Oral Arg. at
6:17. We doubt that the holder of long-valueless stock
certificates can properly bring such a claim, but we decline to
consider this argument in any event because Chalabi failed to
brief any “contentions,” “reasons” or “authorities” to support
it. Fed. R. App. P. 28(a)(9)(A); see also Duncan’s Point Lot
Owners Ass’n v. FERC, 522 F.3d 371, 377 (D.C. Cir. 2008)
(“[W]e will not address an asserted but unanalyzed argument
because appellate courts do not sit as self-directed boards of
legal inquiry and research . . . .” (internal quotation marks
omitted)).
IV.
The district court found the easiest path to resolving this
case and was right to follow it, saving the plaintiff and the
foreign sovereign the unnecessary expense of jurisdictional
discovery. We affirm.
So ordered.