Darryl Lewis v. Kalev Mutond ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2022 Decided March 17, 2023
No. 21-7120
DARRYL LEWIS,
APPELLANT
v.
KALEV MUTOND, IN HIS INDIVIDUAL CAPACITY ONLY,
ADMINISTRATEUR GENERALE, AGENCE NATIONALE DE
RENSEIGNEMENTS, DEMOCRATIC REPUBLIC OF THE CONGO
AND ALEXIS TAMBWE MWAMBA, IN HIS INDIVIDUAL CAPACITY
ONLY, MINISTRE DE LA JUSTICE, GARDE DES SCEAUX ET
DROITS HUMAINS, DEMOCRATIC REPUBLIC OF THE CONGO,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-01547)
Brette A. Pena argued the cause for appellant. With him
on the briefs were Merrill C. Godfrey and Jehanne
McCullough.
Stephen K. Wirth argued the cause for appellees. With him
on the brief were Raul R. Herrera and R. Stanton Jones.
2
Before: KATSAS, RAO, and CHILDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge CHILDS.
Concurring opinion filed by Circuit Judge RAO.
CHILDS, Circuit Judge: Appellant Darryl Lewis, a United
States citizen and veteran, alleges Appellees Kalev Mutond and
Alexis Tambwe Mwamba (Foreign Officials) detained and
tortured him in the Democratic Republic of the Congo (DRC).
Lewis argues that the Foreign Officials did so to extract a false
confession that he was an American mercenary. That is
enough, in Lewis’ view, to establish that the district court had
personal jurisdiction over the Foreign Officials. If not, he
asserts alternatively that jurisdictional discovery is warranted.
We disagree and affirm the district court on both questions.
I.
A.
In 2016, Lewis was a security advisor to a former DRC
presidential candidate. That same year, Kalev Mutond was the
General Administrator of the DRC’s National Intelligence
Agency (ANR), and Alexis Tambwe Mwamba was the DRC’s
Minister of Justice.
The Foreign Officials allegedly acted in concert to detain
and torture Lewis for over six weeks in violation of the Torture
Victim Protection Act (TVPA). Torture Victim Protection Act,
Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at note
following 28 U.S.C. § 1350). He was interrogated for hours,
fed small meals at irregular intervals, deprived of sleep, and
denied essential hygiene products. Neither Lewis’ employer,
family, nor counsel could contact him.
3
The purported goal of Lewis’ detention was to extract a
false confession that he was one of many American
mercenaries working with the then-DRC President’s political
opponent to undermine the government. While in prison,
Official Mutond taunted him with the accusation. Compl. ¶ 31,
J.A. 11. After Lewis failed to confess, Official Tambwe
publicly claimed at a press conference that Lewis was a
mercenary sent to assassinate the then-President of the DRC.
Official Tambwe’s supposed proof was two-fold: first, he
showed a picture of Lewis carrying a machine gun; second, he
contended that since October 2015, 600 United States citizens,
men, and ex-soldiers entered the DRC as part of a “plot” to
“destabilize” its government. Compl. ¶ 35, J.A. 12.
Accordingly, Official Tambwe ordered the DRC’s prosecutor
general to explore whether Lewis’ former boss, the opposition
presidential candidate, had American and South African
mercenaries working for him. Lewis alleges, however, that the
Foreign Officials routinely single out Americans “because they
are Americans and, in the case of veterans[,] . . . because they
are veterans.” Compl. ¶ 39, J.A. 12–13.
In response to the Foreign Officials’ allegations of
American involvement, the United States Embassy in the DRC
released a statement that denied the claims by Official
Tambwe. Compl. ¶ 40, J.A. 13. It stated, “We are aware of the
detention . . . of an American citizen who was working in
Katanga as a security advisor. [] Lewis was not armed and
allegations he was involved in mercenary activity are false.”
Compl. ¶ 40, J.A. 13; U.S. Embassy Concerned About
Reported False Accusations of Mercenary Activities, U.S.
Embassy in the Democratic Republic of the Congo (May 5,
2016), https://cd.usembassy.gov/u-s-embassy-concerned-
4
reported-false-accusations-mercenary-activities/ (last visited
Jan. 2023).1
B.
The district court dismissed Lewis’ complaint for lack of
personal jurisdiction. It also denied Lewis’ request for
jurisdictional discovery.
Lewis timely appealed. We have appellate jurisdiction
under 28 U.S.C. § 1291. We review the district court’s
dismissal for lack of personal jurisdiction de novo and the
denial of jurisdictional discovery for abuse of discretion.
Livnat v. Palestinian Auth., 851 F.3d 45, 48 (D.C. Cir. 2017).
II.
On appeal, the first question is whether the district court
erred by granting the Foreign Officials’ motion to dismiss the
complaint for lack of personal jurisdiction. Specifically, we
must answer whether the Foreign Officials purposefully
availed themselves of the United States by torturing Lewis to
extract a false confession that he was an American mercenary.
We think not.
1
At the motion to dismiss stage, we can take judicial notice of
facts incorporated by reference into the complaint. See
Singletary v. Howard Univ., 939 F.3d 287, 293 n.1 (D.C. Cir.
2019); see also Williams v. Lew, 819 F.3d 466, 473 (D.C. Cir.
2016) (citing Farah v. Esquire Magazine, 736 F.3d 528, 534
(D.C. Cir. 2013)).
5
A.
Only two types of personal jurisdiction can provide a home
for Lewis’ theory. The first is general jurisdiction, and “the
paradigm forum for the exercise of general jurisdiction [for an
individual] is the individual’s domicile.” Goodyear Dunlop
Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011).
Because the Foreign Officials are domiciled in the DRC,
general jurisdiction does not exist. Appellant’s Br. 12; Compl.
¶ 8, J.A. 7.
Without general jurisdiction, Lewis must establish specific
jurisdiction over the Foreign Officials. Interpreting the
Fourteenth Amendment’s Due Process Clause, the Supreme
Court has long held that specific jurisdiction is proper when a
defendant has “certain minimum contacts with [the forum]
such that the maintenance of the suit does not offend
‘traditional notions of fair play and substantial justice.’” Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)). The defendant’s
contacts must be “purposefully directed,” Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472 (1985) (citation omitted), at the
forum to establish “foreseeability . . . that the defendant’s
conduct and connection with the forum . . . are such that he
should reasonably anticipate being haled into court there.” Id.
at 474 (quoting World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297 (1980)); see also Mwani v. bin Laden, 417
F.3d 1, 12 (D.C. Cir. 2005) (making clear that when answering
whether a court has specific jurisdiction over a foreign
defendant, the question is whether the foreign defendant
purposefully availed himself of the forum). And a plaintiff’s
claims must “aris[e] out of or relat[e] to the defendant’s
contacts with the forum.” Bristol-Myers Squibb Co. v. Super.
Ct. of Cal., 137 S. Ct. 1773, 1780 (2017) (alterations in
6
original) (emphasis removed) (quoting Daimler AG v. Bauman,
571 U.S. 117, 127 (2014)).
Lewis does not seek specific jurisdiction under the
Fourteenth Amendment pursuant to Federal Rule of Civil
Procedure 4(k)(1). That would establish personal jurisdiction
over a domestic defendant in a particular state. Compl. ¶ 7,
J.A. 7; Fed. R. Civ. P. 4(k)(1). Instead, Lewis asserts
jurisdiction under the Fifth Amendment over a foreign
defendant according to Rule 4(k)(2). Compl. ¶ 7, J.A. 7; Fed.
R. Civ. P. 4(k)(2)(B) (requiring that so long as a defendant is
not subject to general jurisdiction, exercising personal
jurisdiction may be appropriate if “consistent with the United
States Constitution and laws”). Rule 4(k)(2) permits specific
jurisdiction if the defendant has, among other things,
“affiliating contacts with the United States sufficient to justify
the exercise of personal jurisdiction over that party.” Fed. R.
Civ. P. 4(k) advisory committee’s notes to 1993 amendments.
True, the Supreme Court has yet to explicitly consider
whether the Fifth Amendment’s Due Process Clause requires
the same minimum contacts to establish specific jurisdiction as
under the Fourteenth Amendment. Bristol-Myers Squibb Co.,
137 S. Ct. at 1784 (“[W]e leave open the question whether the
Fifth Amendment imposes the same restrictions [as the
Fourteenth] on the exercise of personal jurisdiction by a federal
court.”). However, most sister circuits and this Court agree that
little jurisdictional daylight exists between the two
Amendments. Livnat, 851 F.3d at 54–55.2 We have made clear
2
See also e.g., Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th
226, 235 (5th Cir. 2022) (en banc) (“We . . . hold that the Fifth
Amendment due process test for personal jurisdiction requires the
same ‘minimum contacts’ with the United States as the Fourteenth
Amendment requires with a state.”); Waldman v. Palestine
Liberation Org., 835 F.3d 317, 330 (2nd Cir. 2016) (“This Court’s
7
precedents clearly establish the congruence of due process analysis
under both the Fourteenth and Fifth Amendments.”); Xilinx, Inc. v.
Papst Licensing GmbH & Co. KG, 848 F.3d 1346, 1352–53, 1353
n.2 (Fed. Cir. 2017) (“[W]e have applied the Supreme Court’s
jurisprudence of personal jurisdiction regarding the demands of the
Fourteenth Amendment’s Due Process Clause to [the Fifth
Amendment].”); Trs. of the Plumbers & Pipefitters Nat’l Pension
Fund v. Plumbing Servs., Inc., 791 F.3d 436, 443–44 (4th Cir. 2015)
(holding that absent a federal statute requiring nationwide service of
process, the “‘minimum contacts’ standard . . . [applies] when
assessing whether personal jurisdiction is consistent with the Due
Process Clause of the Fourteenth Amendment”); KM Enters., Inc. v.
Glob. Traffic Techs., 725 F.3d 718, 731 (7th Cir. 2013) (holding that
when a federal statute provides for nationwide service of process,
“due process requires only that [a defendant] have sufficient
minimum contacts with the United States as a whole to support
personal jurisdiction”); Action Embroidery Corp. v. Atl. Embroidery,
Inc., 368 F.3d 1174, 1180 (9th Cir. 2004) (citation omitted) (“In a
statute providing for nationwide service of process, the inquiry to
determine ‘minimum contacts’ is thus ‘whether the defendant has
acted within any district of the United States or sufficiently caused
foreseeable consequences in this country.’”); Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 369 (3d Cir. 2002) (“[We] hold that a
federal court’s personal jurisdiction may be assessed on the basis of
the defendant’s national contacts when the plaintiff’s claim rests on
a federal statute authorizing nationwide service of process.”); Med.
Mut. of Ohio v. deSoto, 245 F.3d 561, 567–68 (6th Cir. 2001)
(“[W]hen a federal court exercises jurisdiction pursuant to a national
service of process provision, it is exercising jurisdiction for the
territory of the United States and the individual liberty concern is
whether the individual over which the court is exercising jurisdiction
has sufficient minimum contacts with the United States.”); United
States. v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1st Cir. 2001)
(“Whereas state long-arm statutes require a showing that the parties
have sufficient contacts with the forum state, Rule 4(k)(2) requires a
showing that the parties have sufficient contacts with the United
States as a whole.”); Republic of Panama v. BCCI Holdings
8
even recently that “[a]part from the scope of the forum and
potential federalism considerations, the Fifth and Fourteenth
Amendment Due Process inquiries are generally analogous.”
Atchley v. AstraZeneca UK Ltd., 22 F.4th 204, 232 (D.C. Cir.
2022). Exceptions occur when the Fifth Amendment does not
cover a particular entity, such as States of the Union or
sovereign foreign states, not when foreign persons are
involved. South Carolina v. Katzenbach, 383 U.S. 301, 323–
324 (1966); Price v. Socialist People’s Libyan Arab
Jamahiriya, 294 F.3d 82, 96 (D.C. Cir. 2002).
With respect to foreign defendants, a plaintiff’s complaint
must “make a prima facie showing of the pertinent
jurisdictional facts.” Livnat, 851 F.3d at 56–57 (citation
omitted); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007))
(holding that a complaint’s allegations should “contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face’”). Resolving factual disputes
in favor of the plaintiff, such jurisdictional facts are plausible
if they allow a “court to draw the reasonable inference that the
defendant” intended to target the United States. See Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556). The Fifth
Amendment’s Due Process Clause requires “meaningful
‘contacts, ties, or relations[]’” with the United States to create
a “‘fair warning that a particular activity may subject [them] to
the jurisdiction of a foreign sovereign.’” Mwani, 417 F.3d at
11 (second alteration in original) (quoting Burger King Corp.,
471 U.S. at 472). But if a plaintiff’s assertions are mere
“‘[c]onclusory statements’ or a ‘bare allegation of conspiracy
(Luxembourg) S.A., 119 F.3d 935, 946–47 (11th Cir. 1997) (“A court
must . . . examine a defendant’s aggregate contacts with the nation
as a whole rather than his contacts with the forum state in conducting
the Fifth Amendment analysis.”).
9
or agency’” such that they “merely state the plaintiff[’s] theory
of specific jurisdiction[,]” then exercising specific jurisdiction
is improper. Livnat, 851 F.3d at 57 (quoting First Chi. Int’l v.
United Exch. Co., 836 F.2d 1375, 1378–79 (D.C. Cir. 1988)).
This Court’s precedents foreclose Lewis’ jurisdictional
theory that the Foreign Officials tortured him because they
believed he was an American mercenary. To start, torture
alone of an American abroad, unless directed at the United
States, is “insufficient to satisfy the usual ‘minimum contacts’
requirement.” Price, 294 F.3d at 95. Lewis argues that Price
is distinguishable because only its dicta are relevant to this
case. Not so.
Price is an analogous situation. There, the petitioners were
two American citizens who alleged torture and detainment in
Libya. After the Americans photographed sites around a city
in Libya, Libyan officials arrested them because the officials
“believed that the[] photographs constituted anti-revolutionary
propaganda.” Id. at 86. The officials then imprisoned them for
105 days, where they were subject to various forms of physical
and mental abuse. Id. The petitioners, too, claimed that their
detention targeted the United States. See id. at 86, 95.
However, this Court made clear that even if Libya was a
“person” capable of jurisdictional reach under the Fifth
Amendment, “torture[] [of] two American citizens in Libya . . .
would be insufficient to satisfy the usual ‘minimum contacts’
requirement.” Id. at 95.
Still, Lewis believes that the Foreign Officials’
“propaganda campaign” to frame him as an American
mercenary sufficiently targeted the United States. Appellant’s
Br. 14. For support, he asks this Court to narrow Mwani’s
holding to require only that a foreign defendant “engage[] in
unabashedly malignant actions directed at [and] felt in” the
10
United States. Mwani, 417 F.3d at 4 (second alteration in
original) (quoting GTE New Media Servs. Inc. v. BellSouth
Corp., 199 F.3d 1343, 1349 (D.C. Cir. 2000)); Appellant’s Br.
15. That reading divorces this Court’s interpretation of the
minimum contacts necessary to satisfy such a standard.
Mwani, 417 F.3d at 13.
In Mwani, the contacts directed at the United States by
Osama bin Laden and al Qaeda were substantial: petitioners
pointed to at least three separate terrorist attacks orchestrated
by the defendants—the 1993 World Trade Center bombing in
New York; the 1998 plot to bomb the United Nations Federal
Plaza and the Lincoln and Holland Tunnels in New York; and
the 1998 bombing of the American Embassy in Nairobi. Id.The reason those contacts aimed at the United States were
evident of “unabashedly malignant actions” was because the
Nairobi attack (i) was orchestrated to “kill both American and
Kenyan employees . . .”; (ii) it was designed to “cause pain and
sow terror in the embassy’s home country, the United States”;
and (iii) in light of the two prior attacks, the Nairobi attack was
part of “an ongoing conspiracy to attack the United
States . . . .” Id.None of Mwani’s forum-directed activity occurred here.
The only ongoing conspiracy Lewis submits has everything to
do with the DRC’s politics rather than the United States.
Official Tambwe claimed 600 United States citizens entered
the DRC to destabilize it since October 2015 and then ordered
an investigation into whether the American and South African
citizens, who were currently working for the opposition
presidential candidate, were mercenaries. Compl. ¶¶ 32–33,
35, J.A. 11–12. Accordingly, the fact that Lewis is an
American was incidental to the Foreign Officials’ chief
concern: that mercenaries—whether American or South
African—were attempting to influence the DRC’s presidential
11
elections. See Mwani, 417 F.3d at 13 (noting that a plaintiff’s
nationality does not necessarily defeat specific jurisdiction);
see also Twombly, 550 U.S. at 567 (noting that courts should
note a complaint’s “obvious alternative explanation”).
The Foreign Officials cannot be haled into an American
court just because Lewis concludes that their motivation was
against the United States. Specifically, Lewis argues, “other
Americans have been singled out by [the Foreign Officials] for
persecution . . . because they are Americans and, in the case of
veterans[,] such as Mr. Lewis, because they are veterans.”
Compl. ¶ 39, J.A. 12–13. Yet, he offers no further allegation
to explain these past occurrences in detail, like whether the
Foreign Officials specifically targeted the United States in the
past. In Livnat, this Court rejected the petitioner’s conclusory
allegation that the Palestinian Authority had a “general practice
of using terrorism to influence United States public opinion and
policy . . . .” Livnat, 851 F.3d at 57 (citation and internal
quotation marks omitted). So, here, too, Lewis “merely
stat[ing] [his] theory of specific jurisdiction” is not enough to
transform the theory into a grant of personal jurisdiction over
the Foreign Officials. Id.Lewis’ final support for his jurisdictional theory is that the
Foreign Officials’ actions against him attempted to entangle the
United States in a geopolitical conflict. Oral Arg. Tr. 9:6–18.
Attempting to distinguish Livnat, Lewis argues that petitioners
there consequentially failed to describe how the attack at
Joseph’s Tomb was part of the Palestinian Authority’s plot to
influence United States policy. Appellant’s Br. 21; Livnat, 851
F.3d at 57. But Lewis’ theory is even more wanting: that two
lone DRC Officials, in their individual capacities, intended to
entangle the United States in a geopolitical conflict over their
own national election. Compl. ¶¶ 4–5, J.A. 6. At least in
Livnat, the relationship between the Palestinian Authority,
12
Israel, and their governmental organizations was uniquely
“[e]stablished following the 1993 Oslo Accords.” Livnat, 851
F.3d at 47. Here, however, without any other supposed
relationship between the Foreign Officials and the United
States, it is not plausible that the Foreign Officials meant to
avail themselves of the United States by merely accusing
American citizens of being mercenaries.
The specific articles referenced in Lewis’ complaint
embroil his entanglement theory. Lewis argues that at least two
of the articles incorporated by reference in his complaint
suggest that “the United States was putting a lot of political
pressure on the Kabila regime to hold a free and fair election.”
Oral Arg. Tr. 9:6–12. Because of the DRC’s resistance to
doing so, the Foreign Officials, says Lewis, attempted to
influence the United States’ foreign policy. See Oral Ag. Tr.
9:11–18. But the highlighted articles contradict Lewis’
proposition. Indeed, one article expresses, “It has become clear
to many that Lewis has been entangled in a brutal struggle for
power inside the DRC . . . .” Margaret Brennan, CBS
Exclusive: Family of American Security Contractor Jailed in
Congo Pleads for His Freedom, CBS News (May 19, 2016),
https://www.cbsnews.com/news/cbs-exclusive-family-of-
american-security-contractor-jailed-in-congo-pleads-for-his-
freedom (emphasis added) (last visited Jan. 2023). While that
article does reference then-President Obama’s efforts to
support a free and fair election in the DRC, it is not plausible
that the President’s effort “ar[ose] out of or relat[ed] to the
[Foreign Officials’] contacts with the forum.” Bristol-Myers
Squibb Co., 137 S. Ct. at 1780 (citation and internal quotation
marks omitted). Moreover, although the second article
generally recounts Lewis’ detention, it does so concluding that
the DRC’s then-President “[was generally] resisting
international calls and rising pressure in Congo to relinquish
power by the end of th[e] year, as Congo’s Constitution
13
requires.” Jeffrey Gettleman, Congo Lurches Toward a New
Crisis as Leader Tries to Crush a Rival, New York Times (May
11, 2016),
https://www.nytimes.com/2016/05/12/world/africa/congo-
moise-katumbi-joseph-kabila.html (last visited Jan. 2023).
Because neither article even implies that the Foreign Officials
directed their efforts specifically at the United States, we
cannot “reasonabl[y] infer[]” that the articles suggest
purposeful availment of the United States. Iqbal, 556 U.S. at
678 (citation omitted).
The United States Embassy’s public denial of Official
Tambwe’s allegation is equally futile in establishing specific
jurisdiction. Lewis maintains that the Embassy’s public denial,
and its nonpublic diplomatic efforts regarding his detention and
torture, confirm that the Foreign Officials intended to target the
United States. Oral Arg. Tr. 11:1–18; 12:8–20; Appellant’s Br.
5–7. The Embassy’s public statement does not support such a
theory. It does not suggest that the Foreign Officials attempted
to “cause pain and sow terror” in the United States. Mwani,
417 F.3d at 13. It does not infer that the Officials’ allegations
were part of some conspiracy against the United States. Id.Instead, the Embassy merely disputed the Foreign Officials’
allegations, stating, “We are aware of the detention . . . of an
American citizen . . . . [] Lewis was not armed and allegations
he was involved in mercenary activity are false.” U.S. Embassy
Concerned About Reported False Accusations of Mercenary
Activities, U.S. Embassy in the Democratic Republic of the
Congo (May 5, 2016), https://cd.usembassy.gov/u-s-embassy-
concerned-reported-false-accusations-mercenary-activities/
(last visited Jan. 2023). Without more, we cannot infer that the
Embassy’s cursory denunciation is jurisdictionally
consequential.
14
Traditional notions of fair play and substantial justice do
not save Lewis’ complaint. Torture is central to proving a
TVPA claim. Pub. L. No. 102-256, § 3(b), 106 Stat. 73 (1992)
(codified at note following 28 U.S.C. § 1350). Lewis no doubt
makes troubling allegations of the torture he experienced.
However, his chief argument for why justice warrants personal
jurisdiction here depends solely on the TVPA. And “it is well-
settled that ‘a statute cannot grant personal jurisdiction where
the Constitution forbids it.’” Price, 294 F.3d at 95 (citation
omitted).
B.
Without personal jurisdiction, Lewis claims that the
district court should have permitted jurisdictional discovery. A
district court acts well within its discretion to deny discovery
when no “facts additional discovery could produce . . . would
affect [the] jurisdictional analysis.” Goodman Holdings v.
Rafidain Bank, 26 F.3d 1143, 1147 (D.C. Cir. 1994). A
plaintiff need only have a “good faith belief” that “reasonable
discovery” could “supplement . . . jurisdictional
allegations . . . .” Caribbean Broad. Sys., Ltd. v. Cable &
Wireless PLC, 148 F.3d 1080, 1090 (D.C. Cir. 1998) (“good
faith belief”); Second Amend. Found. v. U.S. Conf. of Mayors,
274 F.3d 521, 525 (D.C. Cir. 2001) (citation omitted)
(“reasonable discovery”); GTE New Media Servs. Inc., 199
F.3d at 1351 (“supplement . . . jurisdictional allegations”); see
also Urquhart-Bradley v. Mobley, 964 F.3d 36, 48 (D.C. Cir.
2020) (citation and internal quotation marks omitted) (“[I]f a
party demonstrates that it can supplement its jurisdictional
allegations through discovery, then jurisdictional discovery is
justified.”). But the discovery request cannot be a “fishing
expedition.” Bastin v. Fed. Nat’l Mortg. Ass’n, 104 F.3d 1392,
1396 (D.C. Cir. 1997).
15
Some confusion exists about Lewis’ precise justification
for jurisdictional discovery. In his appellate brief, he requested
jurisdictional discovery “to obtain additional evidence
demonstrating [the Foreign Officials’] intended effect on the
United States, evidence that goes beyond the showing of torture
itself.” Appellant’s Br. 26. His reply brief strengthened his
ask, seeking “emails and other correspondence concerning the
allegations in the complaint, and depositions of the [Foreign
Officials].” Reply Br. 14–15.
Regardless, the district court did not abuse its discretion
when it denied jurisdictional discovery. Each argument that
Lewis submits on appeal does not “cure [his] failure to tie [his]
jurisdictional theory to [his] attack . . . .” Livnat, 851 F.3d at
58. Indeed, the district court denied Lewis’ jurisdictional
discovery request because he failed to describe “specific ways
to supplement his allegations.” J.A. 27. Requesting relevant
correspondence from the Foreign Officials is likely to be a
fishing expedition because it is unlikely to uncover that they
were part of any scheme to target the United States.
Nevertheless, because Lewis failed to make any specific
discovery requests until his reply brief, that argument is waived
on appeal. New York Rehab. Care Mgmt., LLC v. NLRB, 506
F.3d 1070, 1076 (D.C. Cir. 2007) (“[I]n order to prevent the
‘sandbagging’ of another party, ‘we have generally held that
issues not raised until the reply brief are waived.’” (citation
omitted)).
III.
Lewis failed to demonstrate that exercising specific
jurisdiction over the Foreign Officials, in this case, would meet
the requirements of the Fifth Amendment’s Due Process
Clause. And he also failed to describe particular ways in which
jurisdictional discovery would cure his complaint’s defect.
16
Therefore, we affirm the district court’s grant of the Foreign
Officials’ motion to dismiss for lack of personal jurisdiction
and its denial of Lewis’ request for jurisdictional discovery.
So ordered.
RAO, Circuit Judge, concurring: Under circuit precedent,
we have no personal jurisdiction over Darryl Lewis’s claims
because he has not plausibly alleged the required minimum
contacts with the United States as a whole. I concur in the panel
opinion but write separately to note that there are reasons to
reconsider whether the personal jurisdiction limits required by
the Due Process Clause of the Fifth Amendment are identical
to those of the Fourteenth.
Shortly after this circuit held the same personal
jurisdiction standards apply under the Fifth and Fourteenth
Amendments, Livnat v. Palestinian Authority, 851 F.3d 45, 54
(D.C. Cir. 2017), the Supreme Court declared it was an “open”
question whether the Fifth Amendment imposes the same due
process limits as the Fourteenth, Bristol-Myers Squibb Co. v.
Superior Ct. of Cal., 137 S. Ct. 1773, 1783–84 (2017). While
the parties do not raise this issue, in an appropriate case we
should reassess what limits the Fifth Amendment places on the
federal courts’ exercise of personal jurisdiction over foreign
defendants.
***
Lewis sued two Congolese officials in federal district
court, alleging they imprisoned and tortured him. Lewis’s
cause of action arose under the Torture Victim Protection Act
of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at
note to 28 U.S.C. § 1350). To establish personal jurisdiction,
he invoked Federal Rule of Civil Procedure 4(k)(2). That Rule
allows a plaintiff to “establish[] personal jurisdiction over a
defendant” who “is not subject to jurisdiction in any state’s
courts of general jurisdiction” simply by “serving a summons”
on him. FED. R. CIV. P. 4(k)(2); see also Atchley v. AstraZeneca
UK Ltd., 22 F.4th 204, 231–32 (D.C. Cir. 2022) (explaining
Rule 4(k) “is essentially a federal long-arm statute”). No party
contests that Lewis has a cause of action under federal law or
that Lewis properly served the Congolese defendants in
2
compliance with Rule 4(k). The only question is whether
asserting personal jurisdiction would be “consistent with the
United States Constitution.” FED. R. CIV. P. 4(k)(2)(B). In
federal court, that query focuses on the limits imposed by the
Fifth Amendment’s Due Process Clause.
In Livnat, we determined the “usual” Fourteenth
Amendment specific jurisdiction requirements also apply to the
Fifth Amendment inquiry. 851 F.3d at 56. We must therefore
consider whether the defendant has the requisite “minimum
contacts” with “the United States as a whole.” Id. at 55; cf.
International Shoe Co. v. Washington, 326 U.S. 310 (1945).
The Livnat court gave three reasons for equating the due
process protections of the Fifth and Fourteenth Amendments.
First, it cited the “uniform” view of our sister circuits and
suggested Supreme Court precedent also dictated this result.
Livnat, 851 F.3d at 54–55. Second, the court could identify no
reason to distinguish the two Due Process Clauses. The
plaintiffs argued that jurisdiction in the federal courts did not
implicate the federalism concerns that arise when evaluating
jurisdiction in state courts; however, the court rejected this
argument because “personal jurisdiction is not just about
federalism.” Id. at 55. Finally, the court suggested applying the
same personal jurisdiction standards in both contexts would be
“easier to administer.” Id. at 55–56.
All three of Livnat’s premises have been called into
question in the intervening years. First, just a few months after
Livnat, the Supreme Court expressly left “open the question
whether the Fifth Amendment imposes the same restrictions on
the exercise of personal jurisdiction by a federal court” as the
Fourteenth Amendment imposes on state courts. Bristol-
Myers, 137 S. Ct. at 1784. The Supreme Court has not yet
resolved this open question, although other circuits have
followed Livnat’s reasoning. See, e.g., Douglass v. Nippon
3
Yusen Kabushiki Kaisha, 46 F.4th 226, 234–41 (5th Cir. 2022)
(en banc).
Second, recent originalist scholarship suggests there are
reasons to distinguish the Fifth and Fourteenth Amendment
standards. See Stephen E. Sachs, The Unlimited Jurisdiction of
the Federal Courts, 106 VA. L. REV. 1703 (2020). There is little
(or no) evidence that courts and commentators in the Founding
Era understood the Fifth Amendment’s Due Process Clause to
impose a minimum contacts requirement. On the contrary, the
widespread assumption was that Congress could extend federal
personal jurisdiction by statute. See Douglass, 46 F.4th at 260–
62 (Elrod, J., dissenting) (surveying early cases and concluding
that “none lends support” to applying the minimum contacts
test to determine due process limits under the Fifth
Amendment).
To provide just a few examples, Justice Story explained
that, if Congress had spoken clearly, it could have allowed “a
subject of England, or France, or Russia … [to] be summoned
from the other end of the globe to obey our process, and submit
to the judgment of our courts.” Picquet v. Swan, 19 F. Cas. 609,
613 (C.C.D. Mass. 1828) (No. 11,134); see also Sachs,
Jurisdiction, 106 VA. L. REV. at 1714–17 (discussing Picquet).
The court refused to exercise jurisdiction over the defendant
(an American expatriate), not because of any constitutional
limitation, but because Congress had not provided the
necessary authorization. Picquet, 19 F. Cas. at 613–15. Ten
years later, the Supreme Court described Story’s reasoning as
“having great force” and adopted the same approach. Toland v.
Sprague, 37 U.S. (12 Pet.) 300, 328 (1838). The prevailing
understanding was that when it came to suits against foreign
defendants in federal courts, the reach and limits of personal
jurisdiction were governed by Congress.
4
Livnat applied the minimum contacts test to assess
personal jurisdiction in the federal courts by importing
Fourteenth Amendment due process limits into the Fifth
Amendment. See Sachs, Jurisdiction, 106 VA. L. REV. at 1705
(“[C]urrent doctrine … takes the Fourteenth Amendment as
given, and remakes the Fifth Amendment in its image.”).
Sources of original meaning suggest this may well be a
parachronism.
That leaves Livnat’s third justification: ease of
administration. But the fact that a given approach may be easy
to administer does not make it legally correct. Such pragmatic
considerations cannot override the proper interpretation of the
Constitution.
***
There is substantial evidence that the Fifth Amendment
does not impose the same due process limits on personal
jurisdiction in the federal courts as the Fourteenth Amendment
does in the state courts. A reevaluation of the Fifth
Amendment’s due process protections is best undertaken by the
en banc court in an appropriate case with the benefit of full
briefing. Because the court today correctly applies our
precedent, I concur.