Rinat Akhmetshin v. William Browder ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 2020 Decided April 13, 2021
No. 19-7129
RINAT AKHMETSHIN,
APPELLANT
Vv.
WILLIAM BROWDER,
APPELLEE
On Petition for Panel Rehearing
Michael Tremonte argued the cause for appellant. With
him on the briefs was Alexandra G. Elenowitz-Hess.
Michael J. Gottlieb argued the cause and filed the brief for
appellee. With him on the briefs was Stephanie L. Miner.
Before: TATEL and KATSAS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
2
TABLE OF CONTENTS
OPINION ACCOMPANYING CERTIFICATION OF
QUESTIONS TO THE D.C. COURT OF APPEALS...........000e00e 3
ORIGINAL PANEL OPINION AND DISSENTING OPINION ........ 14
DEFENDANT-APPELLEE’S PETITION FOR PANEL
REHEARING OR REHEARING EN BANC........00ccceeccessseeeeeees 37
PLAINTIFF-APPELLANT’S RESPONSE TO THE PETITION
FOR PANEL REHEARING AND REHEARING EN BANC............. 61
28K ok oe Ok
EDWARDS, Senior Circuit Judge: In 2018, Appellant Rinat
Akhmetshin, a resident of the District of Columbia (“District”)
and a dual citizen of the United States and the Russian
Federation, filed a defamation action in the United States
District Court for the District of Columbia against Appellee
William Browder, a nonresident alien and citizen of the United
Kingdom. The District Court had subject-matter jurisdiction on
diversity-of-citizenship grounds. See 28 U.S.C. § 1332(a)(2).
Browder moved to dismiss the action on several grounds,
including for lack of personal jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(2). Because Browder made his
allegedly defamatory statements while outside of the District
of Columbia, Akhmetshin sought to establish personal
jurisdiction over Browder under section 13-423(a)(4) of the
District’s long-arm jurisdiction statute. See D.C. CODE
§ 13-423(a)(4) (2001). According to Browder, however, the
“government contacts exception” resulted in the exclusion of
the vast majority of his conduct within the District from the
personal jurisdiction calculus. See Env’t Rsch. Int'l, Inc. v.
Lockwood Greene Eng’rs, Inc., 355 A.2d 808, 813 (D.C. 1976)
(en banc). Akhmetshin countered by arguing that that the
government contacts exception was inapplicable because
Browder is a nonresident alien who lacks sufficient ties to the
United States. The District Court agreed with Browder,
dismissing the case on personal jurisdiction grounds and
denying Akhmetshin’s request for jurisdictional discovery. See
Akhmetshin v. Browder, 407 F. Supp. 3d 11, 14 (D.D.C. 2019).
Akhmetshin appealed the District Court’s decision. We
vacated and remanded, holding that much of Browder’s
conduct within the District — including several activities that
may not have included direct contact with agents, members, or
4
instrumentalities of the federal government — should have been
included in the jurisdictional calculus. Akhmetshin v. Browder,
983 F.3d 542, 553-55 (D.C. Cir. 2020). In reaching that result,
we declined to pass upon Akhmetshin’s contention that the
government contacts exception has limited applicability to
nonresident aliens. See id. at 550-53. Instead, we vacated the
District Court’s order and remanded for jurisdictional
discovery, noting that — in our view — the District Court had
abused its discretion in applying an overbroad view of the
government contacts exception. Jd. at 557-58.
Judge Tatel dissented. He suggested that the better course
would be to certify two questions to the District of Columbia
Court of Appeals: First, what is the scope of the government
contacts exception when it is applied to efforts to influence
federal legislation and policy through the media? Second, may
a nonresident alien invoke the exception? See id. at 563 (Tatel,
J., dissenting).
Browder timely petitioned for panel rehearing and
rehearing en banc. After considering his arguments and
Akhmetshin’s response, the panel has now decided to certify
questions to the D.C. Court of Appeals regarding the
circumstances in which the government contacts exception
applies and whether nonresident aliens who are citizens only of
foreign countries may invoke the government contacts
exception.
Four questions are hereby certified for consideration by
the D.C. Court of Appeals. The certified questions appear at the
conclusion of part III of this opinion.
5
I. A Brief Summary of the Facts and Proceedings Leading
to Certification
The original decision issued by this court lays out in detail
the context in which this case arose, including Browder’s
historical connections to the District and the procedural
background of this litigation. See Akhmetshin, 983 F.3d at
547-50. We recount those details here only to the extent
necessary to provide useful background to the D.C. Court of
Appeals or to clarify any matters that might otherwise be
confusing.
Browder is a financier who lives and works in the United
Kingdom. Since 2009, he has traveled to the District on a
number of occasions. Akhmetshin alleged (without discovery)
that Browder has — while in the District — met with members of
Congress and provided testimony before governmental bodies,
appeared on television and podcasts, given interviews to
publications, participated in panel discussions at
nongovernmental organizations (“NGOs”) and think tanks,
promoted a book he authored, and attended personal events
such as social dinners and a funeral. Both parties agree that this
conduct has on a number of occasions related in some way to
Browder’s advocacy for measures holding human rights
abusers in Russia and elsewhere accountable for their
misdeeds. In particular, Browder expended extensive efforts in
promoting passage of the Russia and Moldova Jackson-Vanik
Repeal and Sergei Magnitsky Rule of Law Accountability Act
of 2012 (the “Magnitsky Act”). See Pub. L. No. 112-208, 126
Stat. 1496 (2012). It appears, however, that substantial portions
of Browder’s conduct in the District — particularly after 2012 —
did not include direct contacts with agents, members, or
instrumentalities of the Federal Government.
6
On July 12, 2018, Akhmetshin filed a complaint against
Browder in the District Court, alleging that Browder had
defamed him in several July 2017 tweets and statements.
Browder moved to dismiss the complaint for, among other
things, lack of personal jurisdiction, asserting that his conduct
within the District was not sufficient to satisfy any of the three
“plus factors” required by D.C. Code § 13-423(a)(4).
According to Browder, his contacts with the District were
largely related to lobbying and advocacy efforts and, therefore,
under the government contacts exception, could not be
considered in determining whether he was subject to personal
jurisdiction in the District. In response, Akhmetshin asserted
that the government contacts exception could not apply to
Browder because he is a nonresident alien who lacks sufficient
ties to the United States. Akhmetshin also argued that
Browder’s contacts with the District satisfied any of the three
plus factors in the long-arm statute. In the alternative,
Akhmetshin requested limited jurisdictional discovery to
further establish Browder’s contacts with the District.
The District Court granted Browder’s motion to dismiss
on personal jurisdiction grounds, denied Akhmetshin’s request
for discovery, and dismissed the case without prejudice. See
Akhmetshin v. Browder, 407 F. Supp. 3d 11, 14 (D.D.C. 2019).
In analyzing whether Browder’s contacts with the District
constituted a “persistent course of conduct” under the District’s
long-arm statute, the District Court held that the government
contacts exception applies to the conduct of nonresident aliens,
relying in large part on a footnote from an opinion of this court,
as well as prior District Court decisions. See id. at 23-24 (citing
Stabilisierungsfonds fur Wein v. Kaiser Stuhl Wine Distribs.
Pty. Ltd., 647 F.2d 200, 205 n.11 (D.C. Cir. 1981); LG Display
Co. v. Obayashi Seikou Co., 919 F. Supp. 2d 17, 26-27 (D.D.C.
2013)). The District Court then excluded from the
jurisdictional calculus virtually all of Browder’s conduct
7
within the District — regardless of whether it included direct
contacts with Federal Government agencies or officials — under
the exception. Jd. at 24-25, 24 n.15. In so doing, the court
expressed its view that the government contacts exception
operated to exclude from its inquiry all connections with the
District made by “a non-resident defendant who ‘concerns
[himself] with federal legislation, regulations, and policies’ in
an effort to ‘advance [the non-resident defendant’s federal]
policy agenda.” Jd. at 24 (alterations in original) (quoting
United Therapeutics Corp. v. Vanderbilt Univ., 278 F. Supp.
3d 407, 418 (D.D.C. 2017)).
Akhmetshin appealed and we reversed the District Court’s
decision to deny jurisdictional discovery. See Akhmetshin, 983
F.3d at 558. We explained that it was unclear to us whether,
based on D.C. Court of Appeals precedent, the government
contacts exception applies to nonresident aliens. See id. at
550-51. We concluded that, if we were forced to resolve that
issue in order to dispose of the case, we would likely need to
certify a question to the D.C. Court of Appeals. See id. at 553.
The panel majority thought that the nonresident alien issue
might become moot, however. See id. The majority concluded
that the District Court had applied an overly generous view of
the government contacts exception in light of District law as
set forth by the D.C. Court of Appeals in its seminal decision
in Environmental Research International, Inc. v. Lockwood
Greene Engineers, Inc., 355 A.2d 808 (D.C. 1976) (en banc).
See Akhmetshin, 983 F.3d at 553-55 (citing 355 A.2d at 813).
Since the District Court had employed that overly generous
view in denying jurisdictional discovery, this court held that
such denial had been an abuse of discretion. See id. at 557-58.
We also concluded that Akhmetshin had shown enough to
obtain jurisdictional discovery upon remand. See id. at 558.
8
Judge Tatel dissented. In his view, Environmental
Research International did not settle the question of whether
the government contacts exception extends beyond direct
contacts with federal government agencies and officials. See id.
at 559-61 (Tatel, J., dissenting). Instead, he believed that “no
‘controlling precedent’ resolve[d] the question of whether the
government contacts exception extends” as broadly as the
District Court held and as Browder had argued before us. /d. at
560. Like the majority, he believed that there was genuine
uncertainty “as to whether a foreign citizen may invoke the
government contacts exception.” Jd. at 562. Believing both
issues to be of “extreme public importance,” id. at 558 (citation
and quotation marks omitted), he urged the court to certify
questions to the D.C. Court of Appeals, id. at 563.
After we issued our decision, Browder filed a petition for
panel rehearing and rehearing en banc. Some of Browder’s
legal arguments now give us pause. First, he contends that the
“purpose” of a defendant’s entry into the District is the key to
determining whether the government contacts exception
applies to the defendant’s activities once here. See
Def.-Appellee’s Pet. For Panel Reh’g or Reh’g En Banc
(“Reh’g Pet.”) at 10-12. And when a defendant enters the
District with the purpose of contacting the Federal
Government, other conduct during the same trip to the District
should be excluded from the jurisdictional calculus, even if it
does not itself involve direct contacts with the Government. See
id. Relatedly, Browder argues that this “purpose” inquiry is
dictated by our case law predating Environmental Research
International, upon which the D.C. Court of Appeals has
looked favorably. See id. at 14-17 (citing Env’t Rsch. Int'l, 355
A.2d at 813 n.9)).
In light of Browder’s arguments in his petition for
rehearing, and Akhmetshin’s strong responses to those
9
arguments, we have concluded that the matters in dispute are
best resolved by the D.C. Court of Appeals. See McKesson v.
Doe, 141 S. Ct. 48, 51 (2020) (per curiam) (holding that
certification is appropriate when a “dispute presents novel
issues of state law peculiarly calling for the exercise of
judgment by the state courts” and when “certification would
ensure that any conflict . . . between state law and the First
Amendment is not purely hypothetical”).
II. The Uncertain Scope of the Government Contacts
Exception
In Environmental Research International, the D.C. Court
of Appeals, sitting en banc, explained that the government
contacts exception is grounded “in the unique character of the
District as the seat of national government and in the
correlative need for unfettered access to federal departments
and agencies for the entire national citizenry.” 355 A.2d at 813.
The court then added that “[t]o permit... courts to assert
personal jurisdiction over nonresidents whose sole contact with
the District consists of dealing with a federal instrumentality
not only would pose a threat to free public participation in
government, but also would threaten to convert the District of
Columbia into a national judicial forum.” Jd. (citation omitted).
Thus, “entry into the District of Columbia by nonresidents for
the purpose of contacting federal governmental agencies is not
a basis for the assertion of in personam jurisdiction.” Jd.
(citation omitted).
“Environmental Research International indicates that the
Court of Appeals viewed the government contacts exception as
applying only to members of the ‘national citizenry.”
Akhmetshin, 983 F.3d at 550 (emphasis added) (quoting 355
A.2d at 813). “This suggests that the exception does not apply
to nonresident aliens.” Jd. And other phrases indicate that the
10
exception applies only to direct contacts with the Federal
Government and its agents, members, or instrumentalities. See
Env't Rsch. Int'l, 355 A.2d at 813 (referring to “nonresidents
whose sole contact... consists of dealing with a federal
instrumentality” (emphases added)); id. (grounding the
exception in the “need for... access to federal departments
and agencies” (emphasis added)). However, the opinion might
be read to say, as Browder suggests, that the dispositive
question is the “purpose” for which “nonresidents” have
entered the District. See id. On this view of the law, if the
nonresident’s purpose in entering the District is to have direct
contact with the federal government, other activities
undertaken while the defendant is here arguably might be
excludable from the jurisdictional calculus.
Adding to the uncertainty in this area is that several
decisions of the D.C. Court of Appeals since 1976 “have left
the scope of the government contacts exception ‘unsettled.’”
Akhmetshin, 983 F.3d at 550 (first quoting Companhia
Brasileira Carbureto de Calicio v. Applied Indus. Materials
Corp., 640 F.3d 369, 371 (D.C. Cir. 2011)); and then citing
Naartex Consulting Corp. v. Watt, 722 F.2d 779, 786-87 (D.C.
Cir. 1983) (addressing possible tension between Court of
Appeals decisions on the government contacts exception)). In
1978, a panel of the D.C. Court of Appeals held “that the First
Amendment provides the only principled basis” for the
government contacts exception, with the exception’s “premise”
having shifted “solely to the First Amendment.” Rose v. Silver,
394 A.2d 1368, 1374 (D.C. 1978). “And in 1990, in a decision
responding to a certified question from this court, the Court of
Appeals framed an inquiry regarding the government contacts
exception as ‘whether the defendants can assert a First
Amendment interest... , thereby permitting invocation of the
“government contacts” principle.’” Akhmetshin, 983 F.3d at
551 (alteration in original) (quoting Lex Tex Ltd., Inc. v.
11
Skillman, S79 A.2d 244, 249 (D.C. 1990)). If the exception
applies only to a defendant who possesses cognizable First
Amendment rights, it is not clear whether it applies to Browder.
See United States v. Verdugo-Urquidez, 494 U.S. 259, 265
(1990) (noting that “textual exegesis... suggests that ‘the
people’ protected by the .. . First and Second Amendments...
refers to a class of persons who are part of a national
community or who have otherwise developed sufficient
connection with this country to be considered part of that
community”). Nor have we found a decision in which the D.C.
Court of Appeals has applied the exception to a nonresident
alien.
In sum, we have two broad and difficult issues before us:
whether nonresident aliens may invoke the government
contacts exception, and the scope of conduct to which it
applies. Considering the arguments raised in the petition for
rehearing, we are now convinced that District law in both
spheres is “genuinely uncertain.” Companhia Brasileira, 640
F.3d at 373 (quoting Sturdza v. United Arab Emirates, 281 F.3d
1287, 1303 (D.C. Cir. 2002)).
Ill. The Certified Questions
Under D.C. Code § 11—723(a), the D.C. Court of Appeals
may answer certified questions from this court if they involve
“questions of law of the District of Columbia which may be
determinative of [a] cause pending... as to which it
appears . . . there is no controlling precedent in the decisions of
the District of Columbia Court of Appeals.” We have therefore
certified questions to the Court of Appeals when it appears that
“District of Columbia law is genuinely uncertain’ and the
question[s] [are] of ‘extreme public importance.’” Companhia
Brasileira, 640 F.3d at 373 (quoting Sturdza, 281 F.3d at
1303).
12
For the reasons discussed above, we have no doubt that the
legal questions at issue here admit of no easy answers. The law
is therefore genuinely uncertain. We also believe that the
questions posed by this case concern matters of great public
importance. First, the nonresident alien issue “affects core First
Amendment values because it is far from clear whether the
right to petition the government extends to Browder as a
noncitizen.” Akhmetshin, 983 F.3d at 562 (Tatel, J., dissenting)
(citations omitted). And while the record is silent as to the
number of nonresident aliens who enter the District each year
with the purpose of affecting federal policy, it seems likely that
the number is not insignificant. Second, “lobbying” is “one of
this city’s major businesses,” id. at 563, and the jurisdictional
effect of advocacy efforts that do not involve direct contacts
with the federal government may impact the degree to which
visitors are willing to undertake such efforts moving forward.
Phrased differently, nonresidents may elect to refrain from
media, promotional, and academic activities within the District
to advance their federal policy agendas if such activities make
it more likely that they will be subjected to personal jurisdiction
here.
Rather than “[s]peculate[e]” on these difficult and “novel
issues of [District] law,” McKesson, 141 S. Ct. at 51 (citation
and quotation marks omitted), we certify the following
questions to the District of Columbia Court of Appeals:
1. May nonresident aliens who are citizens only of
foreign countries invoke the government contacts
exception?
2. Ifthe first question is answered in the affirmative,
must those nonresident aliens possess cognizable
rights pursuant to the First Amendment generally,
13
or any specific clause thereunder, in order to
invoke the exception?
3. Does the government contacts exception extend to
efforts to influence federal policy other than direct
contacts with agents, members, or
instrumentalities of the federal government?
4. Ifthe third question is answered in the affirmative,
what standard governs in determining whether
activities not involving direct contacts with the
federal government are covered under the
exception?
If the Court of Appeals elects to take up these questions, it
may, of course, “exercise [its] prerogative to frame the basic
issues as [it] see[s] fit for an informed decision.” Delahanty v.
Hinckley, 564 A.2d 758, 760 (D.C. 1989) (citation omitted).
To facilitate review by the D.C. Court of Appeals, we have
appended the following materials to this opinion: (1) our
original panel opinion and dissenting opinion; (2) Browder’s
petition for panel rehearing or rehearing en banc; (3)
Akhmetshin’s response to Browder’s rehearing petition; and
(4) excerpts from the Joint Appendix submitted to this court
related to Browder’s conduct within the District of Columbia.
ORIGINAL PANEL OPINION
AND DISSENTING OPINION
14
542 983 FEDERAL REPORTER, 3d SERIES
Fed. Reg. at 65,446, 65,560-62, 65,601; see
also National Cable & Telecommunica-
tions Ass’n, 555 F.3d at 1002 (finding that
the agency complied with the “no broader
than necessary” prong under intermediate
scrutiny because it “carefully considered
the differences between [ ] two regulatory
approaches, and the evidence supports the
[agency]’s decision”).
[9] Finally, the Association argues that
we should subject the rule to strict scruti-
ny. In support, it relies on Barr v. Ameri-
can 207 L.Ed.2d 784 (2020), in which the Court
sustained a First. Amendment challenge to
a statute barring political speakers from
making robocalls while allowing the gov-
ernment to use them for debt collection.
But unlike the rule at issue here, that law
was “directed at certain content,” “aimed
at particular speakers,” and restricted po-
litical speech. Id. at 2347 Gnternal quota-
tion marks omitted). Significantly for our
purposes, moreover, the AAPC plurality
made clear that the decision not only “fits
comfortably within existing First Amend-
ment precedent,” but also is “not intended
to expand existing First Amendment doc-
trine or to otherwise affect traditional or
ordinary economic regulation of commer-
cial activity.” Id. Requiring hospitals to
disclose prices before rendering services
undoubtedly qualifies as “traditional or or-
dinary economic regulation of commercial
activity.” Id.V.
For the foregoing reasons, we affirm the
district court’s grant of summary judg-
ment to the Secretary.
So ordered.
© & KEY NUMBER SYSTEM
sams
Rinat AKHMETSHIN, Appellant
Vv.
William BROWDER, Appellee
No. 19-7129
United States Court of Appeals,
District of Columbia Circuit.
Argued September 22, 2020
Decided December 29, 2020
Background: District of Columbia resi-
dent, who was dual citizen of United States
and Russian Federation, filed defamation
action against lobbyist, who was nonresi-
dent of District and citizen of United King-
dom, claiming that lobbyist falsely stated
that dual citizen was Russian spy. The
United States District Court for the Dis-
trict of Columbia, Emmet G. Sullivan, J.,
407 F.Supp.3d 11, granted lobbyist’s mo-
tion to dismiss for lack of personal juris-
diction, and denied dual citizen’s motion
for jurisdictional discovery.
Holdings: The Court of Appeals, Ed-
wards, Senior Circuit Judge, held that:
(1) lobbyist’s contacts with District, other
than contacts with federal government,
could be considered in jurisdictional
analysis;
(2) fiduciary shield doctrine did not apply
to lobbyist’s contacts related to his
book;
(3) lobbyist’s contacts did not satisfy two
“plus factors” for long-arm jurisdiction;
and
(4) record was incomplete as to third “plus
factor” for long-arm jurisdiction; and
(5) precisely focused jurisdictional discov-
ery was warranted.
Vacated and remanded.
15
AKHMETSHIN v. BROWDER 543
Cte as 983 F.3d 542 (D.C. Cir. 2020)
Tatel, Circuit Judge, filed dissenting opin-
ion.
1. Courts €13.3(3, 11)
Under District of Columbia’s long-arm
jurisdiction statute, any party over whom
personal jurisdiction is sought must have
satisfied one of three “plus factors” within
the District: (1) regularly doing or solicit-
ing business, (2) engaging in any other
persistent course of conduct, or (8) deriv-
ing substantial revenue from goods used or
consumed or services rendered. D.C.
Code § 18-423(a)(4).
2. Courts ¢713.3(4)
Under the government contacts ex-
ception to the District of Columbia’s long-
arm jurisdiction statute, entries into the
District by nonresidents for the purpose of
contacting federal governmental agencies
or instrumentalities do not factor into the
jurisdictional calculus. D.C. Code § 13-
423(a)(4).
3. Constitutional Law 3964
Federal Courts ©2721, 3025(4)
A personal jurisdiction analysis re-
quires that a court determine whether (1)
jurisdiction over a party is proper under
the applicable local long-arm statute and
(2) whether it accords with the demands of
due process. U.S. Const. Amend. 14.
4. Federal Courts €3581(4)
Court of Appeals reviews dismissal of
an action for lack of personal jurisdiction
de novo.
5. Federal Courts €2791
The plaintiff bears the burden of es-
tablishing that the court has personal ju-
risdiction over the defendant.
6. Federal Courts 3591
Denial of jurisdictional discovery is
reviewed for abuse of discretion.
7. Courts 13.3(4)
The government contacts exception to
the District of Columbia’s long-arm juris-
diction statute applies when nonresidents’
sole contact with the District consists of
dealing with a federal instrumentality.
D.C. Code § 13-423(a)(4).
8. Courts ¢°13.3(4)
The government contacts exception to
the District of Columbia’s long-arm juris-
diction statute finds its source in the need
for unfettered access to federal depart-
ments and agencies. D.C. Code § 13-
423(a)(4).
9. Courts €13.3(4)
Entry into the District by nonresi-
dents for the purpose of contacting federal
governmental agencies is the key to the
analysis as to whether the government
contacts exception to the District of Co-
lumbia’s long-arm jurisdiction statute ap-
plies. D.C. Code § 13-428(a)(4).
10. Courts ¢13.3(4)
Under the government contacts ex-
ception to the District of Columbia’s long-
arm jurisdiction statute, only direct con-
tacts with members, agents, or instrumen-
talities of the federal government may be
excluded from the jurisdictional calculus.
D.C. Code § 13-423(a)(4).
11. Federal Courts ©2744
Nonresident lobbyist’s contacts with
District of Columbia, that were not direct
contacts with federal government, could be
included in jurisdictional analysis to deter-
mine whether he had sufficient contacts
with District to support exercise of person-
al jurisdiction in defamation suit against
him for allegedly falsely stating that dual
citizen of United States and Russian Fed-
eration was Russian spy, under govern-
ment exception to District’s long-arm stat-
ute, including his attendance at reception
16
544
and funeral, book promotional appear-
ances, discussions and speeches at think
tanks, interviews in print and audio-visual
media, and hiring of law firm; exception
only allowed direct contacts with members,
agents, or instrumentalities of federal gov-
ernment to be excluded from jurisdictional
ealeulus. D.C. Code § 18-423(a)(4).
12. Courts €-13.6(5)
Under the “fiduciary shield doctrine,”
a defendant employee’s acts and contacts
carried out solely in a corporate capacity
within a forum are removed from the juris-
dictional analysis for the District of Colum-
bia’s long-arm jurisdiction statute. D.C.
Code § 18-423(a)(4).
See publication Words and Phrases
for other judicial constructions and
definitions.
13. Courts €13.6(5)
There is no absolute fiduciary shield
doctrine or a per se rule that an employ-
ee’s acts in his official capacity may never
give rise to personal jurisdiction over him
under the District of Columbia’s long-arm
jurisdiction statute. D.C. Code § 13-
423(a)(4).
14. Federal Courts €=2744
Fiduciary shield doctrine did not ap-
ply to categorically exclude from jurisdic-
tional calculus nonresident lobbyist’s con-
tacts with District of Columbia related to
sales and promotional events for his book,
under District of Columbia’s long-arm ju-
risdiction statute, in defamation suit
against lobbyist who allegedly falsely stat-
ed that District resident was Russian spy,
even though lobbyist was founder and
chief executive officer of copyright owner
for book, where lobbyist was at least part-
ly acting in his individual capacity as au-
thor of book when promoting book in Dis-
trict. D.C. Code § 18-423(a)(4).
983 FEDERAL REPORTER, 3d SERIES
15. Federal Courts ¢2744
Nonresident lobbyist’s direct contacts
with District of Columbia related to sales
and promotional events for his book did
not satisfy “plus factors” of regularly do-
ing or soliciting business in District or
deriving substantial revenue from goods
used or consumed or services rendered in
District, as would be required for exercise
of personal jurisdiction, under District’s
long-arm statute, in defamation suit
against lobbyist who allegedly falsely stat-
ed District resident was Russian spy,
where publisher rather than lobbyist made
sales decisions for book, lobbyist did not
directly receive revenue from book sales,
revenue from sales of book was de minim-
is, and lobbyist only made three book pro-
motion appearances in District over span
of months several years ago. D.C. Code
§ 13-423(a)(4).
16. Courts €13.3(3)
The use of “regularly” to describe the
type of contact contemplated indicates that
the minimal contacts with the District of
Columbia that are required for exercise of
long-arm jurisdiction should at least be
continuing in character. D.C. Code § 13-
423(a)(4).
See publication Words and Phrases
for other judicial constructions and
definitions.
17. Courts €°13.3(3)
The “plus factor” of persistent course
of conduct in the District of Columbia, as
required for exercise of personal jurisdic-
tion over a nonresident, under District’s
long-arm jurisdiction statute, is not a par-
ticularly high bar, and it denotes connec-
tions considerably less substantial than
those required to establish general, all
purpose jurisdiction on the basis of doing
business in the forum. D.C. Code § 13-
423(a)(4).
AKHMETSHIN v. BROWDER 545
Cte as 983 F.3d 542 (D.C. Cir. 2020)
18. Courts ¢13.3(3)
The “plus factor” of persistent course
of conduct in the District of Columbia, as
required for exercise of personal jurisdic-
tion over a nonresident, under District’s
long-arm jurisdiction statute, serves to ex-
clude cases in which the in-forum impact is
an isolated event and the defendant other-
wise has no, or scant, affiliations with the
forum. D.C. Code § 18-423(a)(4).
19. Federal Courts @#2744
Trial court’s record was incomplete as
to whether nonresident lobbyist’s contacts
with District of Columbia satisfied “plus
factor” of persistent course of conduct in
District, as would be required for exercise
of personal jurisdiction over lobbyist, un-
der District’s long-arm statute, in defama-
tion suit against lobbyist who allegedly
falsely stated District resident was Rus-
sian spy. D.C. Code § 13-423(a)(4).
20. Federal Civil Procedure ¢1267.1
Trial courts generally have broad dis-
cretion in ordering or denying discovery.
21. Federal Courts ¢=3565
A trial court by definition abuses its
discretion when it makes an error of law.
22. Federal Courts ¢=3565
The abuse-of-discretion standard in-
cludes appellate review to determine that
the trial court’s discretion was not guided
by erroneous legal conclusions.
23. Federal Civil Procedure @71275.5
District of Columbia resident would
be permitted to pursue precisely focused
jurisdictional discovery aimed at address-
ing whether nonresident lobbyist engaged
in persistent course of conduct within Dis-
trict, as would be required for exercise of
personal jurisdiction, under District’s long-
arm statute, in defamation suit claiming
that lobbyist falsely stated that resident
was Russian spy, since lobbyist had signifi-
cant contacts with District even excluding
from jurisdictional analysis his direct con-
tacts with federal government. D.C. Code
§ 13-423(a)(4).
Appeal from the United States District
Court for the District of Columbia (No.
1:18-ev-01638)
Michael Tremonte argued the cause for
appellant. With him on the briefs was Al-
exandra Elenowitz-Hess.
Michael J. Gottlieb, Washington, argued
the cause and filed the brief for appellee.
With him on the brief was Stephanie L.
Miner, Syracuse, NY.
Before: TATEL and KATSAS, Circuit
Judges, and EDWARDS, Senior Circuit
Judge.
Dissenting opinion filed by Circuit
Judge TATEL.
EDWARDS, Senior Circuit Judge:
On July 12, 2018, Appellant Rinat
Akhmetshin, a resident of the District of
Columbia (“District”) and a dual citizen of
the United States and the Russian Federa-
tion, filed a defamation action in the Dis-
trict Court against Appellee William Brow-
der, a nonresident alien and citizen of the
United Kingdom. See J.A. 7-20. The Dis-
triet Court had subject-matter jurisdiction
on diversity-of-citizenship grounds. See 28
U.S.C. § 13832(a)(2).
Akhmetshin’s complaint cites several in-
cidents to support his claim of defamation:
(1) two tweets posted by Browder in which
he identified Akhmetshin as a “Russian
GRU officer” and a “Russian intelligence
asset”; (2) a statement published in Busi-
ness Insider in which Browder described
Akhmetshin as “a member of Putin’s se-
cret police”; and (8) a television interview
during which Browder described
18
546
Akhmetshin as, “by all accounts, some kind
of shady former Soviet spy, current spy
operator in Washington.” Browder moved
to dismiss the action on several grounds,
including under Federal Rule of Civil Pro-
cedure 12(b)(2) for lack of personal juris-
diction. See J.A. 59. Because Browder
made his allegedly defamatory statements
outside of the District of Columbia,
Akhmetshin sought to establish personal
jurisdiction over Browder under section
13-423(a)(4) of the District’s long-arm ju-
risdiction statute. D.C. CODE § 13-
423(a)(4) (2001).
[1,2] Section 13-423(a)(4) authorizes
the “exercise [of] personal jurisdiction over
a person” who has “caus[ed] tortious inju-
ry in the District of Columbia by an act or
omission outside the District of Columbia.”
Any such party over whom personal juris-
diction is sought must have satisfied one of
three “plus factors” within the District.
See Crane v. Carr, 814 F.2d 758, 763 (D.C.
Cir. 1987). These factors are “[1] regularly
dofing] or solicit[ing] business, [2] en-
gag[ing] in any other persistent course of
conduct, or [8] deriv[ing] substantial reve-
nue from goods used or consumed, or ser-
vices rendered.” D.C, Cope § 13-423(a)(4).
However, “entr[ies] into the District ...
by nonresidents for the purpose of contact-
ing federal governmental agencies [or in-
strumentalities]” do not factor into the ju-
risdictional calculus. Env’t Rsch. Int'l, Inc.
v. Lockwood Greene Eng’rs, Inc., 355 A.2d
808, 813 (D.C. 1976) (en banc) (explaining
the “government contacts exception”).
The record in the case indicates that,
since 2009, Browder has traveled to the
District of Columbia on a number of occa-
sions. While on these trips, he has, among
other things, met with members of Con-
gress and provided testimony before gov-
ernmental bodies, appeared on television
and podcasts, given interviews to publica-
tions, participated in panel discussions at
983 FEDERAL REPORTER, 3d SERIES
nongovernmental organizations (“NGOs”)
and think tanks, and attended personal
events such as social dinners and a funeral.
See, eg., JA. 197-98, 202, 208, 204, 206,
214, 235-36, 248, 249, 251, 333, 336. It is
undisputed that Browder’s visits to the
District often have been related to his
advocacy for measures holding human
rights abusers in Russia accountable for
their misdeeds. See J.A. 39-40, 149. Prior
to 2012, Browder lobbied Congress for
passage of the Russia and Moldova Jack-
son-Vanik Repeal and Sergei Magnitsky
Rule of Law Accountability Act of 2012
(the “Magnitsky Act”). See Pub. L. No.
112-208, 126 Stat. 1496 (2012). After the
passage of the Magnitsky Act in 2012,
Browder’s trips to the District. continued,
both to promote the Act and to participate
in a variety of professional and social
events. See, e.g., J.A. 239-40,
The District Court granted Browder’s
motion to dismiss for lack of personal ju-
risdiction. Akhmetshin v. Browder, 407 F.
Supp. 3d 11, 14 (D.D.C. 2019). The court
agreed with Browder that virtually all of
his contacts with the District were subject
to the government contacts exception; the
court additionally found that Browder’s re-
maining contacts with the District, based
on the then-existing record, were not suffi-
cient for jurisdiction under the District’s
long-arm statute. Id. at 24-25. The District
Court also denied jurisdictional discovery,
as it believed that any additional contacts
with the District that Akhmetshin might
uncover would likely be excluded under
the government contacts exception. Id. at
28.
Based on the current record, we cannot
determine whether Browder’s non-govern-
ment contacts with the District satisfy any
of the three “plus factors” required under
the long-arm statute. The District Court
relied on an overly broad construction of
the government contacts exception in
AKHMETSHIN v. BROWDER 547
Cite as 983 F.3d 542 (D.C. Cir. 2020)
granting judgment for Browder and deny-
ing jurisdictional discovery. Therefore, we
have no sound basis upon which to credit
the District Court’s judgment. According-
ly, we are constrained to vacate the judg-
ment under review and remand the case
for jurisdictional discovery.
I. BACKGROUND
A. Browder’s Background and Con-
tacts with the District of Colum-
bia
Browder is a financier who lives and
works in the United Kingdom. See J.A. 34.
In 1996, he founded Hermitage Capital
Management (“Hermitage”), a hedge fund
specializing in former Soviet markets. See
J.A. 8, 10, 217. In 2008, Sergei Magnitsky,
one of Hermitage’s lawyers, allegedly dis-
covered that Russian government officials
and members of organized crime had used
Hermitage portfolio companies to perpe-
trate a $230 million tax fraud scheme. See
J.A. 39-40, 108. Magnitsky was then ar-
rested by Russian authorities and, in No-
vember 2009, died in a Russian prison. See
J.A. 39-40, 187.
After being notified of Magnitsky’s
death, Browder sought accountability for
those he believed responsible. See, ¢.g.,
J.A. 196-98. In the United States, his ef-
forts took the form of lobbying and advo-
cating for the Magnitsky Act, which au-
thorizes the President of the United States
to impose sanctions against individuals
who were responsible for Magnitsky’s
death, who have benefitted financially from
his death, or who were involved in the
underlying tax fraud scheme. See Magnit-
sky Act $§ 404, 406. In June 2009, Brow-
der testified before the Commission on
Security and Cooperation in Europe (the
“Helsinki Commission”) — an independent
commission of the federal government —
regarding the circumstances of Magnit-
sky’s detention. See J.A. 16. From 2010
through 2012, Browder met with members
of Congress and their staffs, also testifying
before various Congressional bodies. See
J.A. 10, 16, 197-98. Those efforts culminat-
ed in the 2012 enactment of the Magnitsky
Act. See J.A. 10.
Since then, according to Akhmetshin,
Browder has visited the District a number
of times. Those trips have included testi-
mony before a Congressional committee on
one occasion in 2015, as well as testimony
before the Helsinki Commission and a sep-
arate Congressional committees on two
separate trips in 2017. See J.A. 16-17. The
trips have also included attendance at an
April 2018 reception, see J.A. 184, 325-26,
sitting for an interview published in BBC
News magazine in December 2013, see J.A.
181, 211-38, attendance at a book release
event in January 2014, see J.A. 184, 327-34,
participation in an April 2015 panel discus-
sion at the National Endowment for De-
mocracy, see J.A. 181, 234-37, sitting for an
interview published in June 2016 in The
American Interest, see J.A. 181-82, 238-47,
sitting for three interviews on two sepa-
rate dates in July 2017 with cable news
outlets and a podcast, see J.A. 182, 248-51,
sitting for interviews on five separate
dates in April, July, August, and Novem-
ber 2018 with television and print news
outlets, see J.A. 182-838, 252-54, 256-62, and
attendance at a funeral in the District in
September 2018, see J.A. 184, 335-86.
Browder also hired a law firm in the Dis-
trict in 2016 in connection with efforts to
defend himself and the Magnitsky Act
from detractors. See J.A. 264-71.
In 2015, Browder authored a book, Red
Notice, describing his personal back-
ground, the circumstances surrounding
Magnitsky’s death, the passage of the
Magnitsky Act, and subsequent develop-
ments. See J.A. 17, 413-15. Akhmetshin’s
defamation complaint refers to Red Notice
as a “best-seller.” Compl. 1 68, Joint Ap-
20
548
pendix (“J.A.”) 18. Hermitage entities own
and license the copyright to Red Notice,
and they engaged Simon & Schuster, Inc.
(“Simon & Schuster”) to publish the book,
which is sold in the District. See J.A. 372-
73. According to one of Hermitage’s di-
rectors, Browder “does not personally own
any property rights in the book” and “has
personally earned no revenues as a result
of the sales of Red Notice.” Decl. of Ivan
Cherkasov 11 3, 6, J.A. 372-73. Nonethe-
less, in 2015, Browder made at least three
appearances in the District at events pro-
moting Red Notice. See J.A. 153, 208, 204.
B. The Instant Case
Over the last five years, Browder and
Akhmetshin have found themselves in-
creasingly at odds. See J.A. 11-14. These
tensions generally relate to Akhmetshin’s
public advocacy contradicting Browder’s
version of the events that resulted in Mag-
nitsky’s death, including accusations that
Browder and Magnitsky - not Russian
government officials — perpetrated the un-
derlying tax fraud. See J.A. 12-13.
Akhmetshin’s efforts on this front have
ineluded lobbying for the removal of Mag-
nitsky’s name from the Magnitsky Act. See
J.A. 12.
On July 14, 2017, it was widely reported
that Akhmetshin had attended a June 9,
2016 meeting with, among others, Donald
Trump, Jr. in New York City, at which the
Magnitsky Act had been discussed. See
J.A. 14, 35, 90, 108. Shortly after the news
broke, Browder posted two tweets identi-
fying Akhmetshin as a “Russian GRU offi-
cer,” Decl. of Melissa Shube, Ex. A, J.A.
88, and a “Russian intelligence asset,”
Decl. of Melissa Shube, Ex. B, J.A. 95.
Each tweet linked to an online article re-
porting on the June 9, 2016 meeting and
containing information on Akhmetshin’s
background. See J.A. 88-93, 95-105. An ar-
ticle published in Business Insider, also on
983 FEDERAL REPORTER, 3d SERIES
July 14, 2017, included the following quote
from Browder: “So in my opinion you had
a member of Putin’s secret police directly
meeting with the son of the future next
president of the United States asking to
change U[.JS[.] sanctions policy crucial to
Putin.” Decl. of Melissa Shube, Ex. C, J.A.
109. Four days later, during a television
appearance, Browder described Akhmetsh-
in as, “by all accounts, some kind of shady
former Soviet spy, current spy operator in
Washington.” Compl. 151, J.A. 15.
On July 12, 2018, Akhmetshin filed a
complaint against Browder in the District
Court, alleging that Browder’s two tweets,
his statement to Business Insider, and his
statement on television were defamatory.
See J.A. 7-20. On November 30, 2018,
Browder filed a Motion to Dismiss the
Complaint under Federal Rule of Civil
Procedure 12(b)(2) for lack of personal ju-
risdiction and Federal Rule of Civil Proce-
dure 12(b)(6) for failure to state a claim.
See J.A. 25. Regarding personal jurisdic-
tion, Browder asserted that his conduct
within the District was not sufficient to
satisfy any of the “plus factors” required
by D.C. Code § 13-423(a)(4). See J.A. 50-
58. According to Browder, his contacts
with the District were almost entirely re-
lated to lobbying and advocacy efforts and,
therefore, under the government contacts
exception, these contacts could not be con-
sidered in the calculus regarding whether
he was subject to personal jurisdiction in
the District of Columbia. See J.A. 50, 53-
57.
Akhmetshin filed an Opposition to the
Motion to Dismiss. See J.A. 127-79. On the
personal jurisdiction issue, he argued that
the government contacts exception had no
play in the personal jurisdiction calculus
because Browder is a nonresident alien
who lacks sufficient ties to the United
States. See J.A. 149-52. He also argued
that Browder’s contacts with the District
AKHMETSHIN v. BROWDER 549
Cte as 983 F.3d 542 (D.C. Cir. 2020)
satisfied all three plus factors in the Dis-
trict’s long-arm statute. See J.A. 153-56. In
the alternative, Akhmetshin requested lim-
ited jurisdictional discovery to further es-
tablish Browder’s contacts with the Dis-
trict. See J.A. 179.
On September 16, 2019, the District
Court granted Browder’s Motion to Dis-
miss for lack of personal jurisdiction, de-
nied Akhmetshin’s request for discovery,
and dismissed the case without prejudice.
Akhmeishin, 407 F. Supp. 3d at 14. The
District Court applied the terms of the
District’s long-arm statute under D.C.
Code § 18-423(a)(4) and determined that it
could not exercise personal jurisdiction
over Browder based on revenues coming
from sales of Red Notice under the third
plus factor because all revenues went to
Simon & Schuster and Hermitage corpo-
rate entities, not Browder. Jd. at 21-22.
The District Court also found that
“Akhmetshin’s allegations fail to show that
Mr. Browder conducted or solicited busi-
ness in the District” sufficient to satisfy
the first factor under the long-arm statute.
Id. at 22.
The District Court then analyzed wheth-
er Browder’s contacts with the District
constituted a “persistent course of con-
duct” — the second plus factor under the
District’s long-arm statute. Id. at 22-25;
see D.C. Cope § 18-423(a)(4). First, the
District Court rejected Akhmetshin’s argu-
ment that the government contacts excep-
tion does not apply to nonresident aliens.
Akhmetshin, 407 F. Supp. 3d at 23-24,
Second, the District. Court excluded all of
Browder’s direct contacts with governmen-
tal actors from its jurisdictional calculus.
Id. at 24. Third, the District Court also
excluded from the jurisdictional calculus
virtually all of Browder’s other contacts
with the District - including his media
interviews and book promotion events —
under the exception. Jd. at 24-25, 24 n.15.
In so doing, the court expressed its view
that the government contacts exception op-
erated to exclude from the calculus all
conduct within the District by “a non-resi-
dent defendant who ‘concerns [himself]
with federal legislation, regulations, and
policies’ in an effort to ‘advance [the non-
resident defendant’s federal] policy agen-
da.’” Id. at 24 (alterations in original)
(quoting United Therapeutics Corp. v.
Vanderbilt Univ., 278 F. Supp. 3d 407, 418
(D.D.C. 2017).
Next, the District Court addressed
Akhmetshin’s claims that Browder “ha[d]
traveled to the District on several occa-
sions for certain engagements (i.e. dinner,
reception, meetings, private event, and fu-
neral) between 2009 and 2018.” Id. at 25.
Akhmetshin had also noted that Browder
“retained a law firm with an office in the
District, ... sent two demand letters to
NBC Universal regarding a published arti-
cle, and ... stated in a telephone conver-
sation that he would pursue legal action
against a museum located in the District.”
Id. The District Court concluded that
these contacts did “not warrant the exer-
cise of specific personal jurisdiction over a
nonresident defendant.” Id. The District
Court thus determined that because
“Akhmetshin ha[d] failed to demonstrate
that Mr. Browder’s other travel to the
District was not merely sporadic or occa-
sional[,] ... the Court [would] not exercise
personal jurisdiction over Mr. Browder un-
der D.C. Code § 18-423(a)(4).” Id.The District Court also denied
Akhmetshin’s request for jurisdictional
discovery. Id. at 26-28. According to the
court, Akhmetshin had not “demonstrated
a ‘good faith belief that Mr. Browder’s
personal appearances in the District would
establish personal jurisdiction because ‘the
government contacts principle would ex-
clude [them] from the personal jurisdiction
ealculus.’” Id. at 28 (alteration in original)
22
550
(quoting NBC-USA Hous., Inc. Twenty-
Six v. Donovan, 741 F. Supp. 2d 55, 61
(D.D.C. 2010)). Thus, the District Court
found that “Akhmetshin ha[d] failed to
show that jurisdictional discovery [wal]s
warranted” and dismissed the case. Id.On October 11, 2019, Akhmetshin filed a
timely notice of appeal to this court. He
argues that the District Court erred in
finding that it lacked personal jurisdiction
over Browder, in denying jurisdictional
discovery, and in dismissing the case rath-
er than merely his complaint.
II. ANALYSIS
A. Standard of Review
[3] “A personal jurisdiction analysis
requires that a court determine whether
[1] jurisdiction over a party is proper un-
der the applicable local long-arm statute
and [2] whether it accords with the de-
mands of due process.” United States v.
Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995)
(as amended July 28, 1995). The parties
agree that the applicable long-arm statute
is D.C. Code § 13-428. See Crane, 814 F.2d
at 762.
[4-6] We review dismissal of an action
for lack of personal jurisdiction de novo.
See FC Inv. Grp. LC v. IFX Mkts., Ltd.,
529 F.3d 1087, 1091 (D.C. Cir. 2008). The
plaintiff bears the burden of establishing
that the court has personal jurisdiction
over the defendant. Jd. Denial of jurisdic-
tional discovery is reviewed for abuse of
discretion. Id.B. The Government Contacts Excep-
tion
In this case, the merits of Akhmetshin’s
arguments rest largely on the degree to
which Browder’s contacts in the District
should be excluded from the jurisdictional
calculus under the government contacts
exception. Because we must apply District
983 FEDERAL REPORTER, 3d SERIES
law in addressing this issue, we begin our
analysis by examining the scope of the
government contacts exception as enunci-
ated by the District of Columbia Court of
Appeals (the “Court of Appeals”).
1. Development of the Government
Contacts Exception and Applica-
bility to Nonresident Aliens
In 1976, the Court of Appeals, sitting en
bance, held that
entry into the District of Columbia by
nonresidents for the purpose of contact-
ing federal governmental agencies is not
a basis for the assertion of in personam
jurisdiction.
Env't Rsch. Int'l, 355 A.2d at 813. The
court explained that this “government con-
tacts exception” is grounded in “the unique
character of the District as the seat of
national government and in the correlative
need for unfettered access to federal de-
partments and agencies for the entire na-
tional citizenry.” Id. (emphasis added) (in-
ternal quotation marks omitted). The court
added that “[t]o permit ... courts to as-
sert personal jurisdiction over nonresi-
dents whose sole contact with the District
consists of dealing with a federal instru-
mentality not only would pose a threat to
free public participation in government,
but also would threaten to convert the
District of Columbia into a national judicial
forum.” Id.The decision in Environmental Re-
search International indicates that the
Court of Appeals viewed the government
contacts exception as applying only to
members of the “national citizenry.” Id.This suggests that the exception does not
apply to nonresident aliens. Later panel
decisions of the Court of Appeals, however,
have left the scope of the government con-
tacts exception “unsettled.” Companhia
Brasileira Carbureto de Calicio v. Applied
Indus. Materials Corp., 640 F.3d 369, 371
AKHMETSHIN v. BROWDER 551
Cite as 983 F.3d 542 (D.C. Cir. 2020)
(D.C. Cir. 2011); see Naartex Consulting
Corp. v. Watt, 722 F.2d 779, 786-87 (D.C.
Cir. 1988) (addressing possible tension be-
tween Court of Appeals decisions on the
government contacts exception).
To complicate matters further, in 1978, a
“decision of a D.C. Court of Appeals panel
[appears to] have limited the government
contacts exception to cases in which the
contacts with the federal government were
an exercise of First Amendment rights.”
Companhia Brasileira, 640 F.3d at 372
(citing Rose v. Silver, 394 A.2d 1368, 1372-
74 (D.C. 1978)). And in 1990, in a decision
responding to a certified question from
this court, the Court of Appeals framed an
inquiry regarding the government contacts
exception as “whether the defendants can
assert a First Amendment interest ...,
thereby permitting invocation of the ‘gov-
ernment contacts’ principle.” Lex Tex Lid.,
Inc. v. Skillman, 579 A.2d 244, 249 (D.C.
1990). If the government contacts excep-
tion applies only to defendants who pos-
sess cognizable First Amendment inter-
ests, its application to nonresident aliens
such as Browder is uncertain. See United
States v. Verdugo-Urquidez, 494 U.S. 259,
265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)
(noting that “textual exegesis ... suggests
that ‘the people’ protected by the ... First
and Second Amendments ... refers to a
class of persons who are part of a national
community or who have otherwise devel-
oped sufficient connection with this coun-
try to be considered part of that communi-
ty”).
We have found no case, nor has Browder
directed us to one, in which the Court of
Appeals has applied the government con-
tacts exception to the conduct of nonresi-
dent aliens. Instead, Browder relies on two
opinions from this court, issued after E'nvi-
ronmental Research International, in
cases in which a defendant was a nonresi-
dent alien. See Stabilisierungsfonds fur
Wein v. Kaiser Stuhl Wine Distribs. Pty.
Lid., 647 F.2d 200 (D.C. Cir. 1981); Dona-
hue v. Far E. Air Transp. Corp., 652 F.2d
1082 (D.C. Cir. 1981). The decisions in both
cases simply reference, but do not apply,
the government contacts exception. See
Stabilisierungsfonds, 647 F.2d at 205 n.11;
Donahue, 652 F.2d at 1038 n.9. According
to Browder, these decisions establish that
the government contacts exception applies
to nonresident alien defendants. We do not
agree that the decisions go as far as Brow-
der claims.
In Stabilisierungsfonds, we held that an
Australian wine producer and its distribu-
tion subsidiary were subject to long-arm
jurisdiction under D.C. Code § 13-423(a)(1)
and (a)(4) as a result of wine sales in the
District. See 647 F.2d at 205-06. In a foot-
note, we stated the following:
Counsel for [the plaintiffs] noted at oral
argument that [the Australian defen-
dants] may have acted in the District in
connection with their registration of [a
tradeJmark. The District of Columbia,
however, has grafted a “governmental
contacts” exception to its long-arm stat-
ute. That exception holds that the local
courts do not exercise personal jurisdic-
tion over a nonresident on the basis of
activity in the District relating solely to
dealings with the federal government.
We do not rest any part of our decision
on the Australians’ contacts with federal
offices.
Id. at 205 n.11 (emphasis added) (internal
citation omitted). It is theoretically possi-
ble — as Browder urges — to read the last
sentence of the footnote as an application
of the government contacts exception to
the conduct of nonresident alien defen-
dants. In our view, however, the sounder
reading is that the court took no position
on the issue. The Court found that person-
al jurisdiction existed without regard to
the nonresident aliens’ government con-
24
552 983 FEDERAL REPORTER, 3d SERIES
tacts. Jd. at 205-06. In other words, our
statement at the end of the footnote ap-
pears to have been an observation about
the general state of District law, rather
than a rule we applied in that particular
case.
In Donahue, which resulted from a ser-
ies of consolidated suits related to an air-
plane crash in Taipei, we held that a Tai-
wanese airline was not subject to personal
jurisdiction in Guam, Hawai'i, California,
New York, or the District. See 652 F. 2d at
1033-34. While arguing that courts in
Guam, Hawai’i, New York, and the District
had general personal jurisdiction over the
airline, plaintiffs “rel[ied] ... solely upon a
theory of ‘aggregated contacts’ with the
United States as a whole.” Jd. at 1038. We
rejected that basis for jurisdiction, explain-
ing that it “ha[d] attracted only limited
support in federal question cases” and
“ha[d] made no mark at all in cases” aris-
ing under state law in federal courts. Jd. at
1038-39.
During the court’s discussion of the de-
fendant’s contacts with Guam, Hawai'i,
New York, and the District, it was noted
that plaintiffs believed the airline’s interac-
tions with the Civil Aeronautics Board,
located in the District, should have fac-
tored into the jurisdictional calculus. See
id. at 1038. In response, in a footnote, the
court observed that “[dJealings with the
federal government, standing alone, do not
provide a basis for District of Columbia
exercise of personal jurisdiction over a
nonresident.” Jd. at 1038 n.9 (citing Env’t
Rsch. Intl, 355 A.2d at 818). Browder,
again, relies on this footnote as conclusive
evidence that we have applied the govern-
ment contacts exception to the conduct of a
nonresident alien defendant.
As with Stabilisierungsfonds, we do not
believe this footnote carries the prece-
dential weight that Browder urges. Unlike
in Stabilisierungsfonds, we found in Dona-
hue that the District Court lacked person-
al jurisdiction over the defendant. See id.
at 1039. But, as in Stabilisierungsfonds,
that outcome did not depend on the gov-
ernment contacts exception. Instead, we
believed jurisdiction did not exist in the
District — or in Guam, Hawai'i, or New
York — because “aggregated contacts” be-
tween different fora could not lead to gen-
eral personal jurisdiction over a defendant
in any one of them. Jd. at 1038-89. Wheth-
er the airline’s contacts with the Civil
Aeronautics Board were excluded from the
jurisdictional calculus was, therefore, im-
material in determining whether general
personal jurisdiction over the airline exist-
ed in any United States court.
In sum, in neither Stabilisierungsfonds
nor Donahue did this court unambiguously
apply the government contacts exception
to the contacts of nonresident alien defen-
dants. Nor did we engage with the difficult
question of whether the government con-
tacts exception covers such defendants. As
a result, these decisions establish no clear
precedent regarding whether the govern-
ment contacts exception applies to a non-
resident alien.
Browder further notes that in several
cases decided since Environmental Re-
search International, the District Court
appears to have assumed that the govern-
ment contacts exception applies to the con-
tacts of nonresident aliens. See, eg., LG
Display Co. v. Obayashi Seikou Co., 919 F.
Supp. 2d 17, 26-27 (D.D.C. 2013); App
Dynamic ehf v. Vignisson, 87 F. Supp. 3d
322, 327-29 (D.D.C. 2015). He is correct.
These decisions, however, do not establish
that the Court of Appeals would hold that
the government contacts exception applies
to the contacts of nonresident aliens.
If Browder cannot take advantage of the
government contacts exception because he
is a nonresident alien, then it seems clear
that his many contacts with the District
25
AKHMETSHIN v. BROWDER 553
Cite as 983 F.3d 542 (D.C. Cir. 2020)
would be sufficient to establish personal
jurisdiction under the District long-arm
statute. It is significant, albeit not disposi-
tive, that in several cases the District
Court has consistently assumed that the
government contacts exception applies to
the contacts of nonresident aliens, our
court has cited the exception without ever
doubting its efficacy in cases involving
nonresident aliens, and the D.C. Court of
Appeals has never expressly indicated that
the exception does not apply to nonresi-
dent aliens. And Browder compellingly ar-
gues that “nonresident aliens who travel to
the District to advocate for the adoption of
federal legislation do not (and should not)
expect to be sued in the District for their
extraterritorial acts.” Br. for Def.-Appellee
at 15. Nevertheless, we are reluctant to
reach this conclusion because the Court of
Appeals’ decision in Environmental Re-
search International indicates only that
the government contacts exception applies
to members of “the entire national citizen-
ry,” 355 A.2d at 813 (emphasis added),
with no reference to nonresident aliens.
If the only dispositive legal question out-
standing in this case was whether the gov-
ernment contacts exception applies to non-
resident aliens, certification to the Court of
Appeals likely would be appropriate. But
there are other grounds that might dispose
of this case without any need to determine
whether the government contacts excep-
tion applies to nonresident aliens. In these
circumstances, we believe that the wisest
course for now is to simply assume, with-
out deciding, that the government contacts
exception applies to the contacts of nonres-
ident aliens. In other words, we will as-
sume that Browder’s direct contacts with
members, agents, or instrumentalities of
the federal government, both before and
after enactment of the Magnitsky Act, may
be excluded from the jurisdictional calcu-
lus. There is nothing that compels a differ-
ent approach at this stage of the proceed-
ings.
While we “recognize that we are leaving
certain legal questions ... unresolved[,]
. these issues may become moot” de-
pending on what happens in this case mov-
ing forward. See United States v. Todd,
287 F.3d 1160, 1164-65 (D.C. Cir. 2002).
Thus, as we explain below, we will remand
the matter to the District Court for juris-
dictional discovery. Then, using the proper
legal standard for the application of the
government contacts exception, the Dis-
trict Court will recalculate Browder’s con-
tacts with the District. The recalculation
will determine whether, without regard to
any actual government contacts, Browder’s
nonexcluded contacts within the District
satisfy the District’s long-arm statute. If
the District Court’s recalculation of the
jurisdictional factors indicates that Brow-
der is subject to personal jurisdiction un-
der the District’s long-arm statute, then
we may not have to determine whether the
government contacts exception applies to
nonresident aliens.
2. The Limited Scope of the
Government Contacts
Exception
[7-10] Although there may be a ques-
tion as to whether the government con-
tacts exception extends to nonresident
aliens, the meaning and scope of the ex-
ception are otherwise straightforward with
respect to the matters at issue in this case.
The District of Columbia Court of Appeals
has made it clear that the government
contacts exception applies when nonresi-
dents’ “sole contact with the District con-
sists of dealing with a federal instrumen-
tality.” Env't Rsch. Int'l, 355 A.2d at 813(emphases added). The court also stated
that the exception “finds its source in the
. need for unfettered access to federal
departments and agencies.” Id. (emphasis
26
554
added). Thus, under the controlling Dis-
trict law, “entry into the District of Colum-
bia by nonresidents for the purpose of
contacting federal governmental agencies
is” the key to the analysis. Jd. (emphasis
added). Based on this controlling prece-
dent, only direct contacts with members,
agents, or instrumentalities of the federal
government may be excluded from the ju-
risdictional calculus. In our view, the scope
of the government contacts exception goes
no further than this.
Browder has not identified any control-
ling authority postdating Environmental
Research International that applies the
government contacts exception to conduct
not involving direct contact with members
of the federal government or government
agencies. Instead, Browder relies heavily
on two District Court cases for support.
See Inv. Co. Inst. v. United States, 550 F.
Supp. 1218, 1216-17, 1217 né (D.D.C.
1982); United Therapeutics Corp. v. Van-
derbilt Univ., 278 F. Supp. 3d 407, 417-19
(D.D.C. 2017). These decisions cannot car-
ry the day for Browder.
In Investment Company Institute, the
District Court excluded a broker-dealer’s
application for membership in the National
Association of Securities Dealers
(“NASD”) from the jurisdictional calculus.
550 F. Supp. at 1217. The NASD was a
“self-regulatory trade association of the
. securities industry” that was “regis-
tered with the [Securities and Exchange
Commission]” and headquartered in the
District. Jd. at 1217 n.6. It is true, as
Browder notes, that NASD was not techni-
cally an instrumentality of the federal gov-
ernment. However, “[slubmission to
[NASD’s] regulation [wa]s [an] alternative
to direct regulation by the SEC.” Id. (cit-
ing 15 U.S.C. § 780-8; First Jersey Sec.,
Inc. v. Bergen, 605 F.2d 690, 692-93 (8d
Cir. 1979)). An application to a trade asso-
ciation that Congress explicitly authorized
983 FEDERAL REPORTER, 3d SERIES
to exercise regulatory authority presents a
significantly different question for pur-
poses of the government contacts excep-
tion than Browder’s post-2012 contacts
with the District, which have included con-
duct such as interviews with media outlets
and panel discussions at NGOs.
The situation in United Therapeutics is
less clear-cut. In that case, Vanderbilt Uni-
versity’s District-based Office of Federal
Relations performed, among other things,
lobbying and general advocacy work be-
fore federal officials on behalf of the uni-
versity. See United Therapeutics, 278 F.
Supp. 3d at 418. It also “work[ed] closely
with many higher education associations
and coalitions headquartered in [the Dis-
trict], ... in tandem with other Tennessee
colleges and universities ... to advance its
policy agenda,” id. (internal quotation
marks omitted), “host[ed] a two-day ...
Policy and Advocacy seminar ... focuse[d]
on the Office’s federal policy advocacy
work,” id. at 419, and “r[an] an unpaid
summer internship program for Vanderbilt
students” focused on federal public policy,
id. The District Court excluded such con-
duct from the jurisdictional calculus under
the government contacts exception, as it
“eoncern[ed] federal public policy.” Id.
Browder argues that these activities were
analogous to his general advocacy efforts
in the District after enactment of the Mag-
nitsky Act. We do not agree. The conduct
at issue in United Therapeutics appears to
have been more closely tied to “the unique
character of the District as the seat of
national government” than many of Brow-
der’s post-2012 activities in the District.
See Env't Rsch. Intl, 355 A2d at 813.
In any event, even if Investment Com-
pany Institute and United Therapeutics
stretch the limits of the government con-
tacts exception, these decisions are not
controlling precedent. Our research indi-
cates that there is no published decision
AKHMETSHIN v. BROWDER 55D
Cite as 983 F.3d 542 (D.C. Cir. 2020)
from the D.C. Court of Appeals or from
this court supporting Browder’s position
that the government contacts exception ex-
tends beyond what the court said in H’nvi-
ronmental Research International. See id.[11] With the correct standard in
mind, we find that other than his direct
contacts with the government, Browder’s
conduct in the District after 2012 — such as
book promotional appearances, discussions
and speeches at think tanks, and inter-
views in both print and audio-visual me-
dia — should be included in the jurisdiction-
al calculus. The District Court’s exclusion
of those contacts under the government
contacts exception was error.
Since the enactment of the Magnitsky
Act, Browder’s contacts with the District —
based only on publicly available sources —
have included attendance at an April 2018
reception, sitting for an interview publish-
ed in December 2018, attendance at a book
release event in January 2014, partic-
ipation in an April 2015 panel discussion,
three book events on separate dates in
February and April 2015, sitting for an
interview published in June 2016, sitting
for three interviews on two separate dates
in July 2017, sitting for interviews on five
separate dates in April, July, August, and
November 2018, and attendance at a fu-
neral in the District in September 2018.
See J.A. 180-84. He also hired a law firm in
the District in 2016. See J.A. 264-71. This
conduct should be factored into the juris-
dictional calculus, as it did not consist of
direct contact with members, agents, or
instrumentalities of the federal govern-
ment.
To hold otherwise would mean that a
defendant who has even a single contact
with the federal government in support of
a policy agenda may then exclude all con-
tacts with the District that can be some-
how construed as efforts to advance that
agenda. A defendant could make countless
trips to the District for purposes other
than “contacting [the] federal govern-
ment ]” while having those trips excluded
from the jurisdictional calculus. See Env't
Rsch. Int'l, 355 A.2d at 818. The breadth of
such an exception, which would extend well
beyond defendants “whose sole contact
with the District consists of dealing with a
federal instrumentality,” would swallow
the rule. See id. (emphases added). We
therefore reject Browder’s arguments in
support of such a construction of the gov-
ernment contacts exception.
C. Applying the District Long-Arm
Statute and Jurisdictional Discov-
ery
Having determined the correct scope of
the government contacts exception, we
turn to whether Browder’s nonexcluded
conduct within the District after 2012 sat-
isfies the District’s long-arm statute. The
parties agree that Browder committed an
act outside the District that allegedly
caused injury inside the District. Thus,
whether there is personal jurisdiction un-
der the statute depends on whether Brow-
der’s conduct satisfies one of the plus fac-
tors. See D.C. CODE § 138-4238(a)(4); Crane
v. Carr, 814 F.2d 758, 763 (D.C. Cir. 1987).
1. The First and Third Plus Factors
Akhmetshin asserts that sales of Red
Notice in the District constitute, under the
first plus factor, regularly doing business
in the District and, under the third plus
factor, deriving substantial revenue from
the District. See Br. for Pl.-Appellant at
10-11. Akhmetshin also asserts that Brow-
der’s promotional events for the book in
2015 constituted, under the first plus fac-
tor, regularly soliciting business within the
District. See Br. for Pl.-Appellant at 10-11.
We disagree.
28
556
[12] Preliminarily, there appears to be
disagreement between the parties as to
whether Browder’s contacts related to
Red Notice should be categorically exclud-
ed from the jurisdictional calculus because
of the so-called “fiduciary shield.” Under
that doctrine, a defendant employee’s
“acts and contacts carried out solely in a
corporate capacity” within a forum are re-
moved from the jurisdictional analysis.
Flocco v. State Farm Mut. Auto. Ins. Co.,
752 A2d 147, 163 (D.C. 2000) (quoting
Wiggins v. Equifax Inc., 853 F. Supp. 500,
503 (D.D.C. 1994)). Akhmetshin argues
that the doctrine cannot preclude consid-
eration of Browder’s Red Notice-related
contacts with the District because Brow-
der — as the founder and Chief Executive
Officer of Hermitage - is more than a
mere employee. See Br. for Pl.-Appellant
at 11-13; Reply Br. for Pl.-Appellant at 11-
13. Browder, for his part, asserts that
“Akhmetshin’s discussion of the fiduciary
shield doctrine is ... inapposite.” Br. of
Def.-Appellee at 25 (citation omitted).
[13,14] Based on the current record, it
is not clear to us that the fiduciary shield
doctrine is relevant to this case. A panel of
this court recently noted, in considering
the applicability of the doctrine to another
subsection of the District’s long-arm stat-
ute, that “when District of Columbia courts
discuss the fiduciary shield doctrine, they
do so only in the context of construing
what they perceive to be the outer limits of
the Due Process Clause.” Urquhart-Brad-
ley v. Mobley, 964 F.3d 36, 47 (D.C. Cir.
2020) (emphasis added) (citations omitted).
In this case, by contrast, at issue is wheth-
er Browder’s contacts satisfy the District’s
statutory requirements for the exercise of
long-arm jurisdiction. Moreover, the Court
of Appeals has “explicitly decline[d] to
adopt ... an absolute ‘fiduciary shield’
doctrine,” or “a per se rule that an employ-
ee’s acts in his official capacity may never
983 FEDERAL REPORTER, 3d SERIES
give rise to personal jurisdiction over him.”
Flocco, 752 A.2d at 163 n.20. And in this
case, Browder - as the author of Red
Notice — was, at least in part, acting in an
individual capacity when promoting the
book in the District. See Daley v. Alpha
Kappa Alpha Sorority, Inc., 26 A.3d 723,
728 n.3 (D.C. 2011) (holding the fiduciary
shield doctrine inapplicable to “individual
. officers and directors” of an organiza-
tion’s governing body who “were also in
part acting in their individual capacities as
. members” of that body when under-
taking conduct within the District). Thus,
Browder’s in-forum conduct related to Red
Notice is not categorically excluded from
the jurisdictional calculus under the fidu-
ciary shield doctrine.
[15] Nevertheless, even if such con-
tacts are not subject to the fiduciary shield
doctrine, they do not suffice to confer per-
sonal jurisdiction under the first or third
plus factors. In McFarlane v. Esquire
Magazine, which involved a magazine arti-
cle, we explained that “[t]he writer is not
the publisher; [the author]’s contacts must
be assessed separately” for the purpose of
establishing jurisdiction. 74 F.8d 1296,
1300 (D.C. Cir. 1996) (citation omitted).
The same admonition applies here. Simon
& Schuster, rather than Browder himself,
makes the sales decisions for Red Notice,
“including where to sell the book, how
many copies each state or store receives,
and how the book is advertised.” Decl. of
Ivan Cherkasov 1 4, J.A. 372. That the
book is sold in the District does not, there-
fore, mean that Browder himself is regu-
larly doing business here.
Similarly, Browder does not directly re-
ceive revenue from sales of Red Notice in
the District. Such revenue goes to Simon
& Schuster, as well as one of Hermitage’s
corporate entities. See id. at 16, J.A. 378.
And the amount of revenue generated by
sales of Red Notice in the District — per
AKHMETSHIN v. BROWDER 557
Cte as 983 F.3d 542 (D.C. Cir. 2020)
sealed documents Browder submitted to
the District Court — is de minimis for a
book that is, in Akhmetshin’s own words, a
“best-seller.” See Compl. 1 68, J.A. 18; see
also Br. for Pl.-Appellant at 6 (describing
Red Notice as a “bestselling book”); Reply
Br. for Pl.-Appellant at 4 (same). Accord-
ingly, based on the current record, we
cannot say that Browder derives substan-
tial revenue from sales of the book in the
District.
[16] Akhmetshin also notes - and
Browder does not contest — that, on at
least three occasions in 2015, Browder ap-
peared at events in the District to promote
Red Notice. But such appearances, on
their own, are not sufficient to establish
that Browder was “regularly” soliciting
business in the District under the first plus
factor. See D.C. CODE § 13-423(a)(4) (em-
phasis added). As the Court of Appeals has
explained, “‘[t]he use of ... ‘regularly’ to
describe the type of contact contemplated
indicates that ... the minimal contacts
with the District that are required should
at least be continuing in character.’” Par-
sons v. Mains, 580 A.2d 1329, 1330 (D.C.
1990) (per curiam) (quoting Sec. Bank, N.
A. v. Tauber, 347 F. Supp. 511, 515 (D.D.C.
1972)). Three appearances promoting a
book over a span of months several years
ago does not satisfy that requirement. See
id. (holding that a “defendant’s entry of an
appearance as counsel in two or at most
three matters over a ... period of ten
years or longer” in the District was insuffi-
cient to establish jurisdiction under section
18-423(a)(4)).
We therefore agree with the District
Court’s conclusion that - based on the
current record — neither the first nor third
plus factors are satisfied. See Akhmetshin,
407 F. Supp. 3d at 21-22,
2. The Second Plus Factor
[17,18] We turn now to the second
plus factor, which focuses on whether
Browder has engaged in a “persistent
course of conduct” in the District. This is
not a particularly high bar, and it “denotes
connections considerably less substantial
than those required to establish general,
‘all purpose’ jurisdiction on the basis of
‘doing business’ in the forum.” Steinberg v.
Int'l Crim. Police Org., 672 F.2d 927, 931
(D.C. Cir. 1981). Such a requirement
serves “to exclude cases in which th[e in-
forum] impact is an isolated event and the
defendant otherwise has no, or scant, affili-
ations with the forum.” Jd.
[19] According to the Court of Ap-
peals, two or three trips to the District
over the course of a decade likely would
not constitute a persistent course of con-
duct. See Parsons, 580 A.2d at 1330. How-
ever, trips to the District once or twice a
month for a period of years — depending
on a defendant’s conduct during them —
might well suffice. See Htchebarne-Bour-
din v. Radice, 754 A2d 322, 325 & n5
(D.C. 2000) (noting that a trial court in the
District concluded that entrance into the
District “between one and two times a
month” for business purposes over a peri-
od of several years constituted a persistent
course of conduct). Based on the record
before us, Browder’s conduct within the
District appears to fall somewhere be-
tween these two bounds. That record, how-
ever, is incomplete.
3. Jurisdictional Discovery
[20-22] Trial courts generally have
“broad discretion” in ordering or denying
discovery. See Jeffries v. Barr, 965 F.3d
848, 855 (D.C. Cir. 2020) (quoting In re
Mulii-Piece Rim Prods. Liab. Litig., 653
F.2d 671, 679 (D.C. Cir. 1981)). But a trial
court “by definition abuses its discretion
when it makes an error of law.” Koch v.
Cox, 489 F.3d 384, 388 (D.C. Cir. 2007)
(quoting In re: Sealed Case (Med. Rec-
30
558
ords), 381 F.3d 1205, 1211 (D.C. Ci.
2004)). Thus, “the ‘abuse-of-discretion
standard includes review to determine that
the discretion was not guided by erroneous
legal conclusions.’” Jd. (quoting In re:
Sealed Case (Med. Records), 381 F.3d at
1211).
[23] As discussed above, the District
Court based its discovery decision on an
incorrect view of the applicable law. Ac-
cording to the court, jurisdictional discov-
ery was not warranted because the gov-
ernment contacts exception would remove
virtually all of Browder’s personal appear-
ances in the District from the jurisdictional
calculus. Akhmeishin, 407 F. Supp. 3d at
28. That conclusion was premised on an
overly broad view of the government con-
tacts exception. Even excluding his direct
contacts with the federal government and
its instrumentalities, Browder has had sig-
nificant contacts with the District.
“[Akhmetshin] has pointed to links
[Browder] has [had] with the District suffi-
cient at least to permit further inquiry
regarding personal jurisdiction, so that the
statutory ... questions can be resolved on
a fuller record.” See Crane, 814 F.2d at
760 (citation omitted). It is not clear
“whether jurisdictional discovery will as-
sist [Akhmetshin] on this score, but [he] is
entitled to pursue precisely focused discov-
ery aimed at addressing” whether Brow-
der has engaged in a persistent course of
conduct within the District. See GTE New
Media Servs. Inc. v. BellSouth Corp., 199
F.3d 1348, 1352 (D.C. Cir. 2000).
Il.
For the reasons set forth above, we
vacate the judgment of the District Court,
reverse the court’s refusal to allow juris-
dictional discovery, and remand the matter
to allow the District Court to supplement
the existing record. We are ordering “ju-
risdictional discovery to permit develop-
CONCLUSION
983 FEDERAL REPORTER, 3d SERIES
ment of the record on [Browder’s] contacts
with the District of Columbia.” Urquhart-
Bradley, 964 F.3d at 49. Following discov-
ery, the District Court must determine
whether Browder engaged in a persistent
course of conduct sufficient to subject him
to personal jurisdiction under the District’s
long-arm statute. If the District Court de-
termines that Browder is subject to per-
sonal jurisdiction, the court may then con-
sider Browder’s motion to dismiss under
Rule 12(b)(6) for failure to state a cause of
action.
TATEL, Circuit Judge, dissenting:
The Supreme Court recently warned
federal courts against “(s]peculat[ing]”
about “novel issues of state law peculiarly
calling for the exercise of judgment by the
state courts.” McKesson v. Doe, 592 U.S.
—, — , 141 S.Ct. 48, 51, 208 L.Ed.2d
158 (2020) (per curiam) (internal quotation
marks omitted). Such speculation, the
Court explained, “‘is particularly gratu-
itous when the state courts stand willing to
address questions of state law on certifica-
tion.’” Id. (quoting Arizonans for Official
English v. Arizona, 520 U.S. 48, 79, 117
S.Ct. 1055, 187 L.Ed.2d 170 (1997)). That
is the case here. Pursuant to D.C. Code
section 11-723(a), our court may certify
“questions to the D.C. Court of Appeals
when ‘District of Columbia law is genuine-
ly uncertain’ and the question is of ‘ex-
treme public importance.” Companhia
Brasileira Carbureto de Calicio v. Applied
Industrial Materials Corp., 640 F.3d 369,
373 (D.C. Cir. 2011) (quoting Sturdza v.
United Arab Emirates, 281 F.3d 1287,
1303 (D.C. Cir. 2002), certified question
answered, 11 A.3d 251 (D.C. 2011)), certi-
fied question answered, 35 A.3d 1127 (D.C.
2012). In my view, the questions here sat-
isfy both requirements and should be certi-
fied to the D.C. Court of Appeals.
AKHMETSHIN v. BROWDER 559
Cite as 983 F.3d 542 (D.C. Cir. 2020)
L
The government contacts exception
traces its roots to a series of D.C. Cireuit
decisions issued prior to enactment of the
District of Columbia Court Reform and
Criminal Procedure Act of 1970. In Muel-
ler Brass Co. v. Alexander Milburn Co.,
our court held that keeping an agent in the
District of Columbia “to maintain contact
with the Government agencies in respect
to reports, allocations and directives relat-
ing to materials for production” did not
amount to “doing business” under the rele-
vant long-arm statute. 152 F.2d 142, 144
(D.C. Cir. 1945); see also Fandel v. Ara-
bian American Oil Co., 345 F.2d 87, 88-89
(D.C. Cir. 1965) (excluding the govern-
ment-related activities of a District of Co-
lumbia office from the jurisdictional analy-
sis because they did not constitute “doing
business” under the long-arm statute);
Traher v. De Havilland Aircraft of Cana-
da, Lid., 294 F.2d 229, 230 (D.C. Cir. 1961)
(per curiam) (concluding that service was
properly quashed when the only contact
with the District was the maintenance of a
single agent “who serve[d] as a liaison or
contact man with the United States Gov-
ernment”). We likened this to our deci-
sions excluding out-of-town news gathering
from the jurisdictional analysis. If having
agents in the District for the purpose of
news gathering qualified as jurisdictional
contacts, we explained, “ ‘it would bring in
nearly every important newspaper in the
nation, and many foreign publishing corpo-
rations.’” Mueller Brass Co., 152 F.2d at
143 (quoting Neely v. Philadelphia Inquir-
er Co., 62 F.2d 878, 875 (D.C. Cir. 1932)).
After the newly-created D.C. Court of
Appeals assumed responsibility for inter-
preting D.C. law, that court reaffirmed the
government contacts exception in Hnvi-
ronmental Research International, Inc. v.
Lockwood Greene Engineers, Inc., 355
A.2d 808, 8138 (D.C. 1976) (en banc). There,
citing our pre-1970 decisions and sitting en
banc, the court explained that “entry into
the District of Columbia by nonresidents
for the purpose of contacting federal gov-
ernmental agencies [wa]s not a basis for
the assertion of in personam jurisdiction.”
Id. The court grounded the exception “in
the unique character of the District as the
seat of national government and in the
correlative need for unfettered access to
federal departments and agencies for the
entire national citizenry.” Id. Allowing
courts to assert personal jurisdiction when
nonresidents’ “sole contact with the Dis-
trict consist[ed] of dealing with a federal
instrumentality,” the court explained, not
only would “pose a threat to free public
participation in government, but also
would threaten to convert the District of
Columbia into a national judicial forum.”
Id. Accordingly, visits “to the District of
Columbia to consult with officials of the
EPA concerning the possibility of a grant”
did not amount to transacting business
under the long-arm statute. Id.The first question in this case is whether
the government contacts exception is limit-
ed to those who seek to influence federal
legislation and policy through direct con-
tacts with government officials, such as by
visiting them in their offices, or whether it
extends to those who likewise seek to in-
fluence federal policy but through such
tried and true methods as press confer-
ences, talk show appearances, or “book
promotional appearances, discussions and
speeches at think tanks, and interviews in
both print and audio-visual media.” Majori-
ty Op. at 555; see Akhmetshin v. Browder,
407 F. Supp. 3d 11, 24-25 (D.D.C. 2019)
(finding that Browder’s “media interviews”
either “concerned the Magnitsky Act” or
were “intended to challenge any efforts to
repeal” the Act (internal quotation marks
omitted)). According to my colleagues, the
D.C. Court of Appeals resolved this very
issue in Environmental Research. In sup-
32
560
port, they emphasize certain words and
phrases used by the Court of Appeals—
“sole,” “dealing with a federal instrumen-
tality,” “for the purpose of contacting fed-
eral governmental agencies”’—as well as
that when the court referred to “unfet-
tered access,” it specified “to federal de-
partments and agencies.” Majority Op. at
553-54. “Based on this controlling prece-
dent,” the court concludes, “only direct
contacts with members, agents, or instru-
mentalities of the federal government may
be excluded from the jurisdictional calcu-
lus.” Majority Op. at 554.
I beg to differ. “[A] judicial decision
resolves only the case before it,” Spanski
Enterprises, Inc. v. Telewizja Polska, S.A.,
883 F.3d 904, 911 (D.C. Cir. 2018), and the
only question before the court in Environ-
mental Research was whether direct con-
tacts, ie., “consultation” with government
officials, should be excluded from the juris-
dictional analysis. Efforts to influence fed-
eral policy through media events were not
involved, and nothing in the court’s opin-
ion—let alone the words my colleagues
emphasize—even hints that the court
meant to address such efforts, much less
exclude them from the government con-
tacts exception.
It is true, as the court points out, that
“Browder has not identified any control-
ling authority postdating Environmental
Research International that applies the
government contacts exception to conduct
not involving direct contact with members
of the federal government or government
agencies.” Majority Op. at 554. But there
is a very good reason for that. Post-Envi-
ronmental Research, the D.C. Court of
Appeals has heard not a single case where
the party invoking the government con-
tacts exception had, like Browder, traveled
to Washington in an effort to influence
federal legislation through media events.
As in Environmental Research, every sub-
983 FEDERAL REPORTER, 3d SERIES
sequent case involved direct contacts with
government officials: “negotiat[ions] with
the FDA,” Rose v. Silver, 394 A.2d 1368,
1369 (D.C. 1978), reh’g en banc denied, 398
A.2d 787 (D.C. 1979); “patent applications
before the United States Patent and
Trademark Office,” Lex Tex Lid., Inc. v.
Skillman, 579 A.2d 244, 245 (D.C. 1990);
and “petition[s] [to] the U.S. International
Trade Commission,” Companhia Brasi-
leira Carbureto De Calcio v. Applied In-
dusirial Materials Corp., 35 A38d 1127,
1132 (D.C. 2012). The same is true of our
post-E’nvironmental Research cases. None
involved media events. They instead in-
volved direct contacts: “personal appear-
ances” before the Department of the Inte-
rior, Naartex Consulting Corp. v. Watt,
722 F.2d 779, 787 (D.C. Cir. 1983) (internal
quotation marks omitted); a “letter” to a
government official, United States v. Fer-
rara, 54 F.3d 825, 831 (D.C. Cir. 1995);
“petitions” to a federal agency and hiring
“a, District of Columbia law firm,” Bechtel
& Cole v. Graceland Broadcasting Inc., 18
F.3d 953 (D.C. Cir. 1994) (unpublished ta-
ble decision); and “act[ing] in the District
in connection with the[ ] registration of” a
trademark, Stabilisierungsfonds Fur Wein
v. Kaiser Stuhl Wine Distributors Pty.
Ltd., 647 F.2d 200, 205 n.11 (D.C. Cir.
1981). To be sure, “judicial opinions estab-
lish precedential principles that apply to
materially similar factual scenarios arising
in future cases.” Spanski Enterprises, 883
F.3d at 911. But neither Hnvironmental
Research nor any later case, from either
the D.C. Court of Appeals or our court, is
“materially similar” to this case because
none involved efforts to influence federal
legislation through media events.
Contrary to the court, then, no “control-
ling precedent” resolves the question of
whether the government contacts excep-
tion extends to those who travel to Wash-
ington to influence federal policy through
media events. The issue, moreover, satis-
AKHMETSHIN v. BROWDER 561
Cite as 983 F.3d 542 (D.C. Cir. 2020)
fies both of our requirements for certifica-
tion. Because neither the D.C. Court of
Appeals nor our court has ever squarely
addressed the question, and because nei-
ther court has left a “discernible path for
[us] to follow,’” Dial A Car, Inc. v. Trans-
portation, Inc., 182 F.3d 743, 746 (D.C.
Cir. 1998) (quoting Tidler v. Eli Lilly &
Co., 851 F.2d 418, 426 (D.C. Cir. 1988)),
“the scope of the government contacts ex-
ception is genuinely uncertain,” Compan-
hia Brasileira, 640 F.3d at 373. And be-
cause those seeking to influence federal
policy rely so heavily on contacting federal
officials through the media—think
MSNBC, Fox News, CNN, etcetera etcet-
era—the question is of “sufficient public
importance.” Jd.
Of course, the D.C. Court of Appeals
might well agree with my colleagues. But
given the uncertainty of District law and
the importance of this issue, that “choice
[is] not ours to make.” Owens v. Republic
of Sudan, 864 F.3d 751, 811 (D.C. Cir.
2017), certified question answered, 194
A.3d 38 (D.C. 2018), vacated and remand-
ed on other grounds sub nom. Opati v.
Republic of Sudan, —— U.S. ——, 140 8.
Ct. 1601, 206 L.Ed.2d 904 (2020).
Il.
I would also certify the second question
in this case: whether a foreign citizen like
Browder can invoke the government con-
tacts exception. See Majority Op. at 553
(explaining that if the court were to reach
this issue, “certification to the Court of
Appeals likely would be appropriate”).
Recall that in Environmental Research,
the D.C. Court of Appeals grounded the
government contacts exception in both
First Amendment and due process princi-
ples. But in a later case, Rose v. Silver, a
panel of that court “conclude[d] that the
First Amendment provides the only princi-
pled basis for exempting a foreign defen-
dant from suit in the District of Columbia.”
394 A.2d at 1874. The full court subse-
quently denied rehearing en banc. Rose v.
Silver, 398 A.2d 787. As our court ob-
served in Naartex Consulting Corp. »v.
Wait, Rose “appeared to limit the ‘govern-
ment contacts’ exception to activities impli-
cating [FJirst [A]mendment rights.” 722
F.2d at 786; see also Companhia Brasi-
leira, 640 F.3d at 372 (“[A] subsequent
decision of a D.C. Court of Appeals panel
may have limited the government contacts
exception to cases in which the contacts
with the federal government were an exer-
cise of First Amendment rights.”).
Relying on Rose and citing our cases,
Akhmetshin argues that the government
contacts exception does not apply to Brow-
der because he “has no First Amendment
right to petition the United States govern-
ment given that he voluntarily relinquished
his U.S. citizenship.” Appellant’s Br. 23. In
Naartex, however, we said only that Rose
“appeared” to limit the exception, not that
it actually did, and we did so because, as
with our court, a panel of the D.C. Court
of Appeals has no authority to issue a
decision that conflicts with an earlier deci-
sion, especially one issued by the en banc
court. We explained:
In denying rehearing en banc in the
Rose case, the full court failed to explain
or reconcile the apparent conflict with
the Environmental Research opinion,
one judge finding none, and two other
judges calling for the explicit rejection
of the panel opinion in Rose. Since that
time, the court has failed to clarify any
possible conflict. Inasmuch as the denial
of rehearing is evidence that no irrecon-
cilable tension exists between the en
banc opinion and a subsequent panel
opinion, and considering that a panel of
the District of Columbia Court of Ap-
peals is prohibited from issuing an opin-
ion which conflicts materially with a pri-
34
562 983 FEDERAL REPORTER, 3d SERIES
or decision of the full court as this may
be done only by the court sitting en
banc, if it were necessary to determine
what law controls today in the District
of Columbia, we would still be hesitant
to conclude that the clear holding
against governmental contacts as a basis
for personal jurisdiction in Environmen-
tal Research no longer controls,
Fortunately, if there is any tension be-
tween Environmental Research and
Rose, we need not resolve it ....
Naartex, 722 F.2d at 786-87 (alteration
omitted) (internal quotation marks omit-
ted) (citations omitted). A later panel of
the D.C. Court of Appeals noted much the
same. See Companhia Brasileira, 35 A.3d
at: 1131 (““[Slome of our decisions may have
implicitly narrowed the scope of the gov-
ernment contacts doctrine by concluding
that ‘the First Amendment provides the
only principled basis’ supporting it.” (em-
phasis added) (quoting Rose, 394 A.2d at
1374)). Although, as Browder points out,
our court has previously mentioned the
government contacts exception in “refer-
ence” to non-citizens, see Majority Op. at
551-52 (discussing the two cases upon
which Browder relies), neither our court
nor the D.C. Court of Appeals has ever
squarely addressed whether a citizen of
another country may invoke the exception.
Given this, and given the unresolved ten-
sion between Environmental Research
and Rose, District of Columbia law is “gen-
uinely uncertain” as to whether a foreign
citizen may invoke the government con-
tacts exception, “a question of state law
that is vital to a correct disposition of the
case before” us. Tidler, 851 F.2d at 426.
Indeed, we have previously certified a dif-
ferent question to the D.C. Court of Ap-
peals due to the very uncertainty that
Rose created. See Companhia Brasileira,
640 F.3d at 373.
The question is also of “extreme public
importance.” Joy v. Bell Helicopter Tex-
tron, Inc., 999 F.2d 549, 564 (D.C. Cir.
1993) Gnternal quotation marks omitted).
For one thing, it implicates a potential
conflict between two decisions of the D.C.
Court of Appeals—a conflict only that
court may resolve. See M.A.P. v. Ryan,
285 A.2d 310, 312 (D.C. 1971) (“[N]o divi-
sion of this court will overrule a prior
decision of this court ... [.] [Such result
can only be accomplished by this court en
bane.” (footnote omitted)). Moreover, just
as Browder has spent years seeking pas-
sage and enforcement of the Magnitsky
Act, individuals and corporations through-
out the world seek to influence U.S. legis-
lation and policy. See Companhia Brasi-
leira, 640 F.3d at 378 (concluding that the
question to be certified was “of sufficient
public importance because its resolution
could affect numerous individuals and cor-
porations that petition the federal govern-
ment”); Nationwide Mutual Insurance Co.
v. Richardson, 270 F.3d 948, 950 (D.C. Cir.
2001) (explaining that because the clause
at issue “potentially affect[ed] the insur-
ance coverage of most businesses in the
District of Columbia,” the question was
“one of significant import to the public”),
certified question answered, 826 A.2d 310(D.C. 2003), reh’g en banc granted, opinion
vacated, 8382 A.2d 752 (D.C. 2003), vacated
pursuant to setilement, 844 A.2d 344 (D.C.
2004). Lastly, the issue affects core First
Amendment values because it is far from
clear whether the right to petition the
government extends to Browder as a non-
citizen. See, e.g., United States v. Verdugo-
Urquidez, 494 U.S. 259, 265, 110 S.Ct.
1056, 108 L.Ed.2d 222 (1990) (explaining
that the Constitution’s use of the phrase
“the people” in the First Amendment “sug-
gests that ‘the people’ protected by” that
amendment “refers to a class of persons
who are part of a national community or
who have otherwise developed sufficient
35
AKHMETSHIN v. BROWDER 563
Cite as 983 F.3d 542 (D.C. Cir. 2020)
connection with this country to be consid-
ered part of that community”); DKT Me-
morial Fund Lid. v. Agency for Interna-
tional Development, 887 F.2d 275, 285
(D.C. Cir. 1989) (expressing skepticism
that foreign alien organizations were
“within the ‘zone of interests to be protect-
ed or regulated by’” the First Amendment
(quoting Association of Data Processing
Service Organizations v. Camp, 397 U.S.
150, 158, 90 S.Ct. 827, 25 L.Ed.2d 184(1970)).
Il.
It goes without saying that the pandem-
ic ravaging our nation is having a profound
impact on the issues in this case. Fewer
individuals are traveling to Washington to
visit members of Congress, much less to
participate in media events. But we have a
specific case before us—William Browder
traveled to the District to meet with gov-
ernment officials and repeatedly returned
to participate in a series of media events—
and we must decide that case. In any
event, someday the pandemic will end, and
even though travel to Washington may
never return to pre-pandemic levels, how
the courts resolve the two issues in this
case could significantly affect one of this
city’s major businesses: lobbying.
Accordingly, I would certify the follow-
ing two issues to the D.C. Court of Ap-
peals:
1. Does the government contacts ex-
ception extend to efforts to influence
federal legislation and policy through
the media and, if so, what standard
should courts apply to determine which
kinds of activities, ranging from press
conferences aimed at specific legislation
to general public advocacy, are covered?
2. May a citizen of a foreign country
who is not a resident alien invoke the
government contacts exception?
As in all certifications to the D.C. Court
of Appeals, that court would “exercise [its]
prerogative to frame the basic issues as [it]
see[s] fit for an informed decision.” Dela-
hanty v. Hinckley, 564 A.2d 758, 760 (D.C.
1989) Gnternal quotation marks omitted).
Ww
o E KEY NUMBER SYSTEM
T
36
DEFENDANT-APPELLEE’S PETITION FOR PANEL
REHEARING OR REHEARING EN BANC
37
38
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Case No. 19-7129
RINAT AKHMETSHIN
Plaintiff-Appellant,
-v.-
WILLIAM BROWDER,
Defendant-Appellee.
On Appeal from the United States District Court
for the District of Columbia, No. 18-cv-1638
The Honorable Emmet G. Sullivan
DEFENDANT-APPELLEE WILLIAM BROWDER’S
PETITION FOR PANEL REHEARING OR REHEARING EN BANC
Michael J. Gottlieb
Stephanie L. Miner
WILLKIE FARR & GALLAGHER LLP
1875 K Street, NW
Washington, DC 20006
mgottlieb@willkie.com
Telephone: (202) 303-1000
Facsimile: (202) 303-2000
Counsel for William Browder
TABLE OF CONTENTS
TABLE OF CONTENTS... ccccscssesesssesesesesesssesecenessesssssacaeesesseseseseseeseesenees
TABLE OF AUTHORITIES 000... ee eeceseescesceseseeeesesaeeeesacesesseeseeeeseseeeeeseeeees
INTRODUCTION AND RULE 35 STATEMENT 0.0... ceeceeseeeeeeeseeeeeeeeeeees
STATEMENT OF THE CASE... ececeeeessesecsseseseceeeteeteseeeceneescesaeeneeaseeteaseneeas
REASONS FOR GRANTING THE PETITION... eeeeseseseseseeceeeeeeeeeeeenens
I. The Panel Materially Misread the Factual Record................0
Il. The Panel’s “Direct Contact” Limitation Conflicts With
Binding Precedents And Would Upend The Purpose Of The
Government Contacts ExCeption...........cc:ccccssscccessscesssnecsssreceeees
A. The “Direct Contact” Limitation Departs From The
Holding And Purpose Of Environmental Research..........
B. The “Direct Contact” Limitation Conflicts With the
Supreme Court’s Noerr-Pennington Doctrine.............06+
C. The “Direct Contact” Limitation Conflicts With This
Court’s Seminal Government Contacts Exception
Precedents .........csecesssssessececceecescesesesesseessseeseceesesseseneeneesees
CONCLUSION ........ccccccssscssesceetessesseseecsecseeeesneseesaeesesaessesaneeeateesessessessseseeaneaes
CERTIFICATE OF COMPLIANCE ..........::csccsssscessestecesseeseeseessesseesesseeeeeneeaes
CERTIFICATE OF SERVICE .........ccccssssssssssesreeceesccseesecseesecsneseeseesaeeneeeneaes
ADDENDUM
Akhmetshin v. Browder,
No. 19-7129 (D.C. Cir. Dec. 29, 2020) oo. eee eeeeeeeeeeceseeeeeeenereeeeeneeees
Certificate As To Parties, Rulings, And Related Cases .............cscccsssesesteeeeees
39
40
TABLE OF AUTHORITIES
Page(s)
Cases
Akhmetshin v. Browder,
407 F. Supp. 3d 11 (D.D.C. 2019)... cececsseesssesssecseeeeneessesssecsssessecsees 3,4,8
Allied Tube & Conduit Corp. v. Indian Head, Inc.,
486 U.S. 492 (1988)...... ce eccccssecssccsssesseccssecssecssseesecseeseseeessesseeseaeseseceeesesseseaeess 13
Companhia Brasileira Carbureto De Calcio v. Applied Indus.
Materials Corp.,
35 A.3d 1127 (D.C. 2012) ooo. eee cesccsseesseessecsseesseecssecseecsaescseeesseeseeeeeseeeees 10, 11
E. R. R. Presidents Conf. v. Noerr Motor Freight, Inc.,
365 U.S. 127 (1961)... ecccssscssscesseessseessesseessseeeseecsnesssesssecssasesaeesseceseeeseeenes 2, 13
Envtl. Research Int’l, Inc. v. Lockwood Greene Eng’rs, Inc.,
355 A.2d 808 (D.C. 1976) .......eceecccssseesseescesseessnessressseesseeeseeees 1,9, 10, 11, 12, 16
Everett v. Nissan Motor Corp. in U.S.A.,
628 A.2d 106 (D.C. 1993) ou... cesccsssecssecssecsssesssessseceseesseceseessenesesesseesseesaeees 10, 15
Fandel v. Arabian American Oil Co.,
345 F.2d 87 (D.C. Cir. 1965) ...ccccccccsccssecssscssscesseessecssscessecssecsseesueesseseseeeeeees 15
Fed. Prescription Serv., Inc. v. Am. Pharm. Ass’n,
663 F.2d 253 (D.C. Cir. 1981)... ceeeessesseescesssesseeesesesseessuessssesseeseeessesesseesaes 14
Groop Internet Platform Inc. v. Psychotherapy Action Network,
No. CV 19-1854 (BAH), 2020 WL 353861 (D.D.C. Jan. 21, 2020) ..............6 16
Hughes v. A.H. Robins Co.,
490 A.2d 1140 (D.C. 1985) ooo. ccscessessscesseesseecseecsaeessecsseesssessseseseeeseessaeess 15
Inv. Co. Inst. v. United States,
550 F. Supp. 1213 (D.D.C. 1982)... eecceccsscsseeesssesesessessnesseseseeeeseeesssesasenees 16
Jung v. Ass’n of Am. Med. Colls.,
300 F. Supp. 2d 119 (D.D.C. 2004)... ceecesessseeescesseecseessseesseesseeessessesesaneeees 16
-ii-
41
Mueller Brass Co. v. Alexander Milburn Co.,
152 F.2d 142 (D.C. Cir. 1945)... cc ccecscsseseessccseccssesecessnesseeseessecsseeseesessneseeeaes 14
Nader v. Democratic Nat’] Comm.,
567 F.3d 692 (D.C. Cir. 2009)... eescessessccseeseessceeseeseseeesasesseessesereseeeseseaeenees 14
Sierra Club v. Tenn. Valley Auth.,
905 F. Supp. 2d 356 (D.D.C. 2012)... cececessescsssecescesnesceseeeecseeenesseeenesenenaes 16
United Therapeutics Corp. v. Vanderbilt Univ.,
278 F. Supp. 3d 407 (D.D.C. 2017).......cccecccsccssesseeesecseeseceeeeeeessersneeeenaeeeeeens 8, 16
World Wide Minerals Ltd. v. Republic of Kazakhstan,
116 F. Supp. 2d 98 (D.D.C. 2000) 0... cece eesecssescecseseeceeneeeseeecenessesssesneenseeeeaes 16
Rules
Fed. R. App. P. 35(a)(1)-(2).....:cccscccsssscsssecessteceseeecseeeeseeesseeseseeecseesessesessnesenenesseeeeeses 2
Fed. R. App. 40(a)(2) .....cccsccccssessssccssecsssecsseseseecesseecesssecssesesseeceaeeessaseceeseseaeeseaeessaes 1
-iii-
42
INTRODUCTION AND RULE 35 STATEMENT
Defendant-Appellee William Browder respectfully requests panel rehearing
and rehearing en banc of the December 29, 2020 decision vacating the District
Court’s Order dismissing for lack of personal jurisdiction under the “government
contacts exception” to the D.C. long-arm statute (the “Decision”). See Addendum
(“A”) at 1-27.
Panel rehearing is appropriate under Fed. R. App. 40(a)(2) because the
decision misapprehended the factual record regarding Browder’s contacts in the
District after 2012, and misinterpreted the governing law applicable to those
contacts. Relying on the “appearance” of those contacts rather than an examination
of the record, the panel erroneously presumed that Browder’s visits to the District
after 2012 were not tied to the “unique character of the District as a seat of the
national government.” (A19). But the record is unequivocal that Browder’s visits
were intended to influence federal government policy, and also that his post-2012
visits included numerous direct interactions with the federal government.
Rehearing en banc (or panel rehearing) is necessary to correct the panel’s
misreading of the government contacts exception as articulated by the D.C. Court of
Appeals in Environmental Research International, Inc. v. Lockwood Greene
Engineers, Inc., 355 A.2d 808, 813 (D.C. 1976). Departing from the holding and
facts of Environmental Research, as well as the prior precedents of this Court on
43
which Environmental Research relied, the panel erroneously asserted that only
“direct contacts” with the federal government are subject to the exception. (A18).
The panel’s “direct contact” rule misapprehends the nature of lobbying, which
typically involves interaction with the media, think tanks, and non-governmental
bodies as part of advocates’ efforts to foment government action. Absent rehearing,
the panel’s rule threatens to inhibit the exercise of public participation rights, and
would risk converting the District into a national judicial forum by authorizing
expansive jurisdiction over the extraterritorial acts of nonresidents (including U.S.
citizens) who travel to D.C. to petition the government.
The panel’s “direct contact” requirement conflicts with longstanding Supreme
Court precedent holding that indirect efforts to persuade the federal government,
including appeals made via mass media, are entitled to the same protections as
advocates’ direct government engagements. See E. R. R. Presidents Conf. v. Noerr
Motor Freight, Inc., 365 U.S. 127, 140 (1961). The panel’s imposition of a “direct
contact” limitation also conflicts with this Court’s seminal cases establishing the
government contacts exception. Rehearing en banc is necessary to ensure the
uniformity of this Court’s precedents on this question of exceptional importance.
See Fed. R. App. P. 35(a)(1)-(2).
44
STATEMENT OF THE CASE
Browder is a British national who resides in the United Kingdom and is a
leading global human rights and anti-corruption advocate. Akhmetshin v. Browder,
407 F. Supp. 3d 11, 14-15 (D.D.C. 2019) (JA376-77).! Browder advocated for
Congress to enact the Sergei Magnitsky Act in 2012, and he continued his public
policy advocacy in the District after 2012, including by urging Congress to enact the
2016 Global Magnitsky Human Rights Accountability Act. After 2016, Browder
urged Congress and the Justice Department to enforce the Foreign Agents
Registration Act against persons (including Plaintiff) who on behalf of Russian
interests were lobbying in the U.S. (without registering) against the Magnitsky
legislation; at that same time, Browder also fought efforts to repeal the Act or rename
the 2016 legislation, and petitioned the Executive Branch to designate persons for
sanctions under the 2012 and 2016 Magnitsky Acts. Jd. at 24-25 (JA400-01);
Compl. 22-24, 26, 32-37, ECF No. 1 (JA10-13); ECF No. 20 at 8 (JA41).
Browder’s human rights advocacy necessitated his visits to D.C. given the District’s
unique role as the seat of the national government—the visits served no commercial
purpose and Browder earned no money from his advocacy in the District.
On July 12, 2018, Plaintiff-Appellant Rinat Akhmetshin filed this defamation
suit against Browder for commenting on public reports from NBC News and the
1 “JA” refers to the Joint Appendix submitted with the original appeal.
-3-
45
Associated Press addressing Akhmetshin’s ties to Russian intelligence. Compl. Jf 5,
33 (JA7, 12). Akhmetshin did not sue NBC News or any other party besides
Browder, and conceded that the complained acts occurred outside the District.
The District Court granted Browder’s motion to dismiss under Rule 12(b)(2),
finding, inter alia, that the court lacked personal jurisdiction over Browder under the
government contacts exception. Akhmetshin, 407 F. Supp. at 14, 28 (JA377, 411).
The court analyzed each of Browder’s alleged contacts and concluded that they all
fell within the exception, including meetings and public appearances concerning the
Magnitsky Act, appearances relating to the book Red Notice, which “were closely
related to [Browder’s] advocacy of the Magnitsky Act and his lobbying efforts,” id.
at 24 n.15 (JA400), and media appearances in the District which related to his
testimony before the government concerning the Magnitsky Act, and were “intended
to challenge any efforts to repeal that federal law” id. at 24 (JA401). On December
29, 2020, the panel vacated and remanded over Judge Tatel’s dissent. (A1—27).
REASONS FOR GRANTING THE PETITION
I. The Panel Materially Misread the Factual Record
The panel’s core error was its incorrect assumption that Browder’s visits to
the District after 2012 were not “closely tied” to the District’s status as the seat of
national government. (A19). The panel described the “appearance” of the contacts
as described by Akhmetshin, but did not review the actual evidence cataloguing
46
Browder’s visits to the District. The record unequivocally shows not just that all of
the alleged contacts involved Browder’s policy advocacy in the District, but also that
many of the contacts actually did include “direct contact with members, agents, or
instrumentalities of the federal government.” (A20).
The panel assumed that Browder’s post-2012 contacts involved “professional
and social events,” (A3), but the record does not support that presumption. All of
the events and interviews cited by the panel, (A20), concerned the 2012 and 2016
Magnitsky Acts. The panel ignored that Browder’s advocacy for federal government
policy continued with his advocacy for the 2016 Global Magnitsky Act,
notwithstanding that those efforts are described in detail in many of Plaintiff's
submitted exhibits. See, e.g., (JA114, 116-17, 203, 239-40, 257-62, 328-33).
Similarly, Browder fought Akhmetshin’s efforts to remove Magnitsky’s name from
the 2016, rather than 2012, Magnitsky Act. See (JA114, 116-17, 239-40).
The record clearly establishes that Browder’s visits after 2012 continued to be
aimed at influencing federal government policy. See supra, at 3-4. For example,
the panel relied upon Plaintiffs description of a June 2016 interview, (A20), but that
very article describes Browder’s then-current government advocacy efforts in the
District, see (JA239-47), including meetings with Members of Congress regarding
the campaign to repeal the Magnitsky Act. (JA240). As of 2016, Browder was “here
47
in Washington” to attend “meetings with all the top senators and members of the
House to talk about Russia and to talk about Magnitsky.” (JA244).
The panel misread most of the record evidence on which it relied, including
seven public events and ten media interviews cited as part of the panel’s holding.
See (A19-20). As for the events, the panel held that none involved “direct contact
with” the government, (A20), but in fact five of the seven events’ did, including: (1)
an April 2013 reception “marking the passage of the Magnitsky Act” involving
Magnitsky Act Co-Sponsor Rep. Jim McGovern (JA326); (2) an April 2015 panel
discussion including “Members of Congress and other dignitaries” (JA236); (3) an
event the panel called a book event, which was in fact a Hudson Institute event
entitled “The Global Magnitsky Act: Ending Impunity for Human Rights Abusers”
and involved Rep. McGovern and staff from the House Foreign Relations
Committee (JA203); (4) an event at the McCain Institute involving three members
of Congress?; and (5) the funeral of Magnitsky Act Co-Sponsor Sen. John McCain,
attended by dozens of government officials (JA336).
2 The record is silent as to whether any government officials participated in the other
two events, and the panel erred in presuming that none did.
3 Akhmetshin provided no Exhibit documenting this event below or before this
Court. Given its reliance on the event despite this, the Court may take judicial notice
of the Members of Congress who in fact attended. See Event Summary,
https://www.mccaininstitute.org/events/book-discussion-with-bill-browder/.
-6-
48
With respect to the interviews, according to Plaintiff’s own exhibits, Browder
gave three of them (in July of 2018) while he was out of the District (in any event,
the interviews involved the Magnitsky Acts). See (JA253—55). As for the others, a
2013 interview cited by the panel, (A20), describes Browder’s extensive efforts at
the time to engage with Congress and the Executive Branch. (JA212—21). A 2016
interview, (A20), details Browder’s work (extending into 2016) lobbying Congress
on the Global Magnitsky Act. (JA257-62). The 2017 interviews, (A20), described
contemporaneous testimony Browder gave to the Senate Judiciary Committee
regarding Akhmetshin’s efforts to repeal the Magnitsky Act. (JA248—49). As for
the two 2018 interviews that did occur in D.C., the April interview discussed
Browder’s work promoting Magnitsky Acts around the world and urging U.S.
government action, and the November interview directly discussed implementation
of the Global Magnitsky Act. (JA252, JA256—62).
The panel asserted that Browder’s interviews with media outlets were
insufficiently “tied to the unique character of the District as the seat of national
government,” (A19 (internal quotation marks omitted)), but the interviews
demonstrate that they were part and parcel of Browder’s advocacy efforts. The
interviews that Browder gave in the District occurred here because the District is the
seat of national government, and the work that Browder describes in those interviews
is indistinguishable from Vanderbilt University’s “federal policy advocacy work”
49
that was at issue in United Therapeutics Corp. v. Vanderbilt University, 278 F. Supp.
3d 407, 417-19 (D.D.C. 2017).
Absent rehearing, Browder will suffer substantial prejudice on remand. The
District Court carefully evaluated the factual record including considering each of
the contacts described above. See Akhmetshin, 407 F. Supp. at 24-25 (D.D.C. 2019)
(JA400-02). This Court’s mandate that the District Court treat all of the above
events as not involving “direct contacts” with the government, and unrelated to D.C.
role as the seat of national government, would force the District Court to disregard
Plaintiff's own evidence. Supra, at 4-7. No such instruction is necessary. On
rehearing, this Court can reassess the existing record evidence, the appropriate
standard under Environmental Research, and whether jurisdictional discovery is
warranted given Plaintiff's legal burden to establish a basis for exercising
jurisdiction.
II. The Panel’s “Direct Contact” Limitation Conflicts With Binding
Precedents And Would Upend The Purpose Of The Government
Contacts Exception.
Rehearing en banc (or alternatively by the panel) is necessary to avoid a
conflict between the panel’s decision and settled precedents of the Supreme Court
and this Court. The panel’s “direct contact” requirement is contrary to the holding
and purpose of Environmental Research. The panel’s rule also undermines settled
50
law defining the scope of the Petition Clause of the First Amendment, as well as this
Court’s foundational precedents regarding the government contacts exception.
A. The “Direct Contact” Limitation Departs From The Holding And
Purpose Of Environmental Research
The Decision correctly observes that under Environmental Research, “‘entry
into the District of Columbia by nonresidents for the purpose of contacting federal
government agencies is’ the key to the analysis” of the applicability of the
government contacts exception. (A18) (italics in original) (citing Envil. Rsch., 355
A.2d at 813). However, in the next sentence, the panel erroneously states that
Environmental Research restricted the application of the exception to “only direct
contacts with members, agents, or instrumentalities of the federal government.” Jd.
at 17-18.
The panel’s “direct contacts” requirement was not part of the court’s holding
in Environmental Research. Instead, the language appears to derive from a sentence
that, at most, described the court’s rationale for adopting its rule.
To permit our local courts to assert personal jurisdiction
over nonresidents whose sole contact with the District
consists of dealing with a federal instrumentality not only
would pose a threat to free public participation in
government, but also would threaten to convert the District
of Columbia into a national judicial forum.
Envtl. Rsch., 355 A.2d at 813. That statement articulates one scenario in which
jurisdiction would be inappropriate, but the court never purported to define that
51
scenario as the exclusive one to which the exception applies. See (A30—31) (Tatel,
J., dissenting) (“nothing in the court’s opinion—let alone the words my colleagues
emphasize—even hints that the court meant to address such efforts, much less
exclude them from the government contacts exception”).
The panel’s “direct contact” requirement would change the result of
Environmental Research itself. The defendants in Environmental Research had
“direct contacts” with federal officials, but those were not their “only” contacts with
the District—to the contrary, the defendants’ initial contact with the District was
their private contract with a “professional consulting firm incorporated” in the
District, which performed contractual services for defendants in D.C. Envtl. Rsch.,
355 A.2d at 810. Had Environmental Research intended to announce a “sole” and
“direct contact” requirement, the mere existence of a contract for the performance
of services in D.C. would have prevented defendants from satisfying that
requirement. That was not the rule then, and it should not be so now. What matters
is the purpose of defendants’ entry. See Companhia Brasileira Carbureto De Calcio
v. Applied Indus. Materials Corp., 35 A.3d 1127, 1133 (D.C. 2012) (“we have held,
‘entry into the District of Columbia by nonresidents for the purpose of contacting
federal governmental agencies is not a basis for the assertion of in personam
jurisdiction’”); Everett v. Nissan Motor Corp. in U.S.A., 628 A.2d 106, 110 (D.C.
1993) (same). And where a nonresident enters D.C. with such a purpose, no decision
-10-
52
prior to the panel’s had ever held that indirect efforts to influence the government
that occur during such an entry can establish a “persistent course of conduct” for
jurisdictional purposes.
The D.C. Court of Appeals has cautioned against carve outs that, “if applied
loosely, could largely negate the government contacts exception” and cause an
“unrelenting wave of litigation.” Companhia, 35 A.3d at 1133-34 (internal citations
omitted). Yet by artificially constraining the government contacts exception to
“direct contacts,” the Decision would “pose a threat to free public participation in
government, [and] also would threaten to convert the District of Columbia into a
national judicial forum.” Envil. Rsch., 355 A.2d at 813. Under the panel’s rule,
advocates of all stripes who are invited to engage with the U.S. Government in D.C.
would expose themselves to civil liability for doing nothing more than discussing
their meetings and policy objectives with the press. Worse, the “direct contact” rule
means that anything a nonresident does outside of the halls of government while in
D.C. could subject that nonresident to civil jurisdiction here.
A “direct contact” rule will inevitably lead to litigation against unsuspecting
visitors to the District. Because nearly all visitors to D.C. engage in some non-
governmental contacts during their visits, future plaintiffs will be able to establish
jurisdiction by itemizing nonresidents’ social visits and commercial transactions
(travel, meals, entertainment) that take place during visits to engage with the federal
-11-
53
government. That risk is heightened in cases like this one, where jurisdiction is
predicated upon a nonresident’s extraterritorial acts. Such litigation risks deterring
public policy advocates, including U.S. citizens, from traveling to D.C. to engage in
the “public participation” Environmental Research sought to encourage.
The panel appeared to have concerns about interpreting the government
contacts exception in a manner that would “swallow the rule.” (A21). But the
appropriate limiting principle is not an artificial directness requirement—it is the
purpose inquiry supplied by Environmental Research. See 355 A.2d at 813. That
rule does not permit a foreigner to engage in limitless contacts with the District
immune from jurisdiction. Under Environmental Research, visits must be connected
to the District’s “unique” status as the seat of government, and each entry must be
for the purpose of interacting with the government. Jd.
B. The “Direct Contact” Limitation Conflicts With the Supreme
Court’s Noerr-Pennington Doctrine
Since the District of Columbia was established as the seat of national
government, public policy activists from around the world have traveled here to
advocate for the enactment, strengthening, and implementation of federal laws and
regulations. And for decades, citizen and noncitizens alike—from civil rights
advocates in the 1960s to families of victims of terrorist attacks and school
shootings—have coupled their visits to Congress and the Executive with
simultaneous media events to enhance the efficacy of their advocacy. In the 1960s,
-12-
54
the Supreme Court established the principle that indirect efforts to persuade the
federal government, including appeals made via mass media, are inseparable from
advocates’ direct government engagements. See E. R. R. Presidents Conf. v. Noerr
Motor Freight, Inc., 365 U.S. 127, 143 (1961).
The panel acknowledged that the government contacts exception exists to
provide breathing space for the exercise of the right to petition government under
the First Amendment, (A12), yet its “direct contacts” limitation stands in plain
conflict with the Supreme Court’s articulation of that right. In Noerr, the Supreme
Court interpreted the Petition Clause as extending to “a publicity campaign to
influence governmental action.” 365 U.S. at 143. The Supreme Court immunized
railroads from antitrust liability because their activities independent of any
government action—including the use of “speeches, newspaper articles, editorials,
magazine articles, memoranda and” more—were “incidental” to their “efforts to
influence the passage and enforcement of laws” and epitomized a “classic attempt
to influence legislation by a campaign of publicity.” Jd. at 142 (citations and internal
quotation marks omitted). Later precedents recognized that there is no relevant
distinction between indirect and “direct petitioning of government officials, for
Noerr itself immunized a form of indirect petitioning.” Allied Tube & Conduit Corp.
v. Indian Head, Inc., 486 U.S. 492, 503 (1988) Gnternal quotation marks omitted);
see id. at 499, 510 (protecting efforts to influence “governments through direct
-13-
55
lobbying, publicity campaigns, and other traditional avenues of political expression”
including those “directed at the general public”). Likewise, this Court has held that
a “genuine attempt to secure governmental action,” including via advocacy in the
media, is “securely within the protection of Noerr.” Fed. Prescription Serv., Inc. v.
Am. Pharm. Ass’n, 663 F.2d 253, 262, 257 (D.C. Cir. 1981).4
Noerr and its progeny foreclose the panel’s distinction between a
nonresident’s “direct” and “indirect” efforts to petition government. Rehearing is
necessary to avoid divorcing the government contacts exception from the very
constitutional right it is designed to protect.
C. The “Direct Contact” Limitation Conflicts With This Court’s
Seminal Government Contacts Exception Precedents
En banc rehearing is also warranted because the panel’s “direct contact” test
departs from this Court’s prior articulation of the government contacts exception. In
Mueller Brass Co. v. Alexander Milburn Co., 152 F.2d 142, 144 (D.C. Cir. 1945),
this Court considered whether personal jurisdiction could be exercised over a foreign
company that established a D.C. office for the purpose of engaging with the federal
government. Jd. at 143-44. Despite the fact that doing so would necessarily require
numerous transactions, over many years, with private companies and individuals
4 The rationale of Noerr-Pennington extends beyond antitrust cases to the
substantive scope of the Petition Clause right under the First Amendment. Nader v.
Democratic Nat’l Comm., 567 F.3d 692, 696 (D.C. Cir. 2009).
-14-
56
(e.g., signing leases, paying utilities, and hiring employees), Mueller Brass held that
the purpose of those offices exempted those otherwise commercial contacts from the
jurisdictional calculus under the District’s long-arm statute. Id.Following Mueller Brass, this Court continued to apply the government
contacts exception based upon the purpose of the office, and did not ask whether the
company’s “sole contact” with the District was communication with federal
officials.> In Fandel v. Arabian American Oil Co., 345 F.2d 87 (D.C. Cir. 1965),
this Court applied the government contacts exception to a foreign corporation that
established a local office in the District, despite recognizing that the office engaged
in significant activity apart from interactions with the U.S. Government. Jd. at 89.
Fandel excluded from the jurisdictional calculus the foreign corporation’s
“continuous and ponderable physical presence” in the District, including
maintaining an office with a significant monthly payroll, and engaging in efforts to
maintain relationships with “educational and international organizations, private and
public,” and attending “social” events with other “American oil companies.” Jd. at
88-89. If the defendant oil company’s “social” visits and non-governmental
° The D.C. Court of Appeals has also applied the government contacts exception to
commercial offices established in the District for the purpose of engaging with the
U.S. Government, even where such offices rely upon numerous contacts with non-
governmental entities. See, e.g., Everett, 628 A.2d at 109-10; Hughes v. A.H. Robins
Co., 490 A.2d 1140, 1145 n.4 (D.C. 1985).
-15-
57
contacts were excluded from the jurisdictional calculus in Fandel, there is no
justification for holding Browder accountable for nearly identical types of
contacts—unlike the Arabian American Oil Company, Browder has never operated
an office or any kind of for-profit business in D.C. The panel’s “direct contact” rule
also would effectively overrule many district court decisions that, following Mueller
Brass and Fandel, have applied the government contacts exception to contacts with
D.C.-based trade associations and other non-governmental organizations.°
The panel appears to have deemed all decisions pre-dating Environmental
Research to be irrelevant. (A18). But not only does Fandel remain binding
precedent, it was cited approvingly in Environmental Research in the footnote that
provided the authorities in support of the court’s holding. 355 A.2d at 813 n.9. In
sum, Environmental Research affirmed this Court’s decision in Fandel. This Court
® See, e.g., Groop Internet Platform Inc. v. Psychotherapy Action Network, No. CV
19-1854 (BAH), 2020 WL 353861, at *6 (D.D.C. Jan. 21, 2020) (membership in
non-government entity trade association); United Therapeutics, 278 F. Supp. at 418
(University office that worked “with other non-governmental organizations” and
hosted seminars and a summer internship program); Sierra Club v. Tenn. Valley
Auth., 905 F. Supp. 2d 356, 363 (D.D.C. 2012) (corporate office that included
“continuous and deep involvement with this District — hiring and paying staff,
communicating with citizens and officials here and advocating for [plaintiff's]
interests”); Jung v. Ass’n of Am. Med. Colls., 300 F. Supp. 2d 119, 139 (D.D.C.
2004) (travel to the District for the purpose of fulfilling membership obligations in
non-profit founded to work for reform in medical education); World Wide Minerals
Ltd. v. Republic of Kazakhstan, 116 F. Supp. 2d 98, 105 (D.D.C. 2000) (membership
in various trade associations which held conferences in the District); Inv. Co. Inst. v.
United States, 550 F. Supp. 1213, 1217 & n.6 (D.D.C. 1982) (interactions with non-
governmental organizations, including trade associations).
-16-
58
should grant rehearing en banc to avoid overruling or undermining these
longstanding decisions sub silentio.
CONCLUSION
For the foregoing reasons, Browder respectfully submits that the Petition
should be granted.
January 12, 2021 Respectfully Submitted,
/s/ Michael J. Gottlieb
Michael J. Gottlieb
Stephanie L. Miner
WILLKIE FARR & GALLAGHER LLP
1875 K Street, NW
Washington, DC 20006
mgottlieb@willkie.com
Telephone: (202) 303-1000
Facsimile: (202) 303-2000
Counsel for William Browder
-17-
59
CERTIFICATE OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32(g)(1), undersigned
counsel certifies that this brief:
(i) | complies with the type-volume limitation of 32(a)(7)(B) because it
contains 3,815 words, excluding the parts of the brief exempted by
Rule 32(f) and Circuit Rule 32(e)(1); and
(ii) | complies with the typeface requirements of Rule 32(a)(5) and the type
style requirements of Rule 32(a)(6) because it has been prepared using
Microsoft Office Word 2013 and is set in Times New Roman font in a
size equivalent to 14 points or larger.
Dated: January 12, 2021 /s/ Michael J. Gottlieb
Michael J. Gottlieb
-18-
60
CERTIFICATE OF SERVICE
Thereby certify that all participants in this appeal are registered CM/ECF users
and that service will be accomplished electronically through the Court’s CM/ECF
system today, January 12, 2021.
Dated: January 12, 2021 /s/ Michael J. Gottlieb
Michael J. Gottlieb
-19-
PLAINTIFF-APPELLANT’S RESPONSE TO THE
PETITION FOR PANEL REHEARING
AND REHEARING EN BANC
61
62
ORAL ARGUMENT HELD ON SEPTEMBER 22, 2020
United States Court of Appeals
for the District of Columbia Circuit
No. 19-7129
RINAT AKHMETSHIN,
Plaintiff-Appellant,
V.
WILLIAM BROWDER,
Defendant-Appellee.
On Appeal from the United States District Court for the District of Columbia in
No. 1:18-cv-01638-EGS, Hon. Emmet G. Sullivan, U.S. District Judge
PLAINTIFF-APPELLANT’S RESPONSE TO THE PETITION
FOR PANEL REHEARING AND REHEARING EN BANC
MICHAEL TREMONTE
ALEXANDRA G. ELENOWITZ-HESS
SHER TREMONTE LLP
90 Broad Street, 23rd Floor
New York, New York 10004
(212) 202-2600
(fax) 212-202-4156
mtremonte@shertremonte.com
ahess@shertremonte.com
Counsel for Plaintiff-Appellant
g COUNSEL PREss, LLC (202) 783-7288 * (888) 277-3259
63
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rules 15(c)(3) and 28(a)(1), Akhmetshin submits this
Certificate as to Parties, Rulings, and Related Cases.
1. Parties, Intervenors, and Amici Curiae
Petitioner is William Browder, who is the Defendant-Appellee in this case.
Respondent is Rinat Akhmetshin, who is Plaintiff-Appellant in this case.
2. Ruling Under Review
The ruling at issue is the panel’s decision in Akhmetshin v. Browder, No. 19-
7129 (D.C. Cir. Dec. 29, 2020) (A1-27).
3. Related Cases
This case has not previously been before this or any other court. Counsel for
Appellant are not aware of any related cases within the meaning of D.C. Circuit Rule
28(a)(1)(C).
64
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......c cc cecccecsessssseesceseescesecsesesenseeneescenessceaeseseneeseeneraees iv
INTRODUCTION 00... eeccscesscssccseeenneececsnecanesneceesaecenecseesaeseseceeeseesaeseaseeeesseesaeeeneneees 1
LEGAL STANDARD... cecssesccscescesccescessesccssesecscecessceseeseesesseesaceceeseseseseesseneeeeenes 2
ARGUMENT. ........ccccscssscsccsssesscescessecscccseessesssecaneeecseseaeeeesaeeenecaneneeeseseaseneeeseseneeaneneees 3
I. THE COURT SHOULD DENY BROWDER’S PETITION FOR
REHEARING EWN BANC... cccccccscsssesscssessesecssesseesestecoeeseeaneseeneneeceesseeaneeeeneneeas 3
A. The Panel Decision Was Correct Under Applicable Law...................+ 3
1. The Panel Majority Applied the Government Contacts
Exception Consistent with the District of Columbia’s and
This Court’s Precedentt..........ccccessssssesessceseesseesseeseseseseceeeeeeeeenes 3
2. Browder’s Argument Regarding the Noerr-Pennington
Doctrine Should Be Deemed Waived .............eecesseeeseeeseeeeeeeneees 8
3. Even if the Argument Is Not Waived, the Noerr-Pennington
Doctrine Is Not Applicable to This Case .............cccesesseeseeseees 9
B. The Petition Does Not Otherwise Present a Question of
Exceptional Importance Under Federal Law ...............ccsccessseseseeeseneees 12
1. An En Banc Court Cannot Resolve the Remaining
State Law Question ..........c:cccssscccsssseceessesecessseessseeeesssesesesseeeeees 12
2. Resolution of the State Law Question Would Be Premature ...13
3. Browder’s “Slippery Slope” Argument Is Unavailing ............. 14
Il. THE COURT SHOULD DENY BROWDER’S PETITION FOR
PANEL REHEARING ou... eee ccceseeeeseseeeseseeeaeesenesenesesaseneeeeeeeseneneseseeeseeanes 15
i
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE. .........
lil
65
66
TABLE OF AUTHORITIES
Page(s)
Cases
Al Hela v. Trump,
972 F.3d 120 (D.C. Cir. 2020).........ccecccssesssscssscessseseeesesesssesseseseseseseessessneeenes 14
Allied Tube & Conduit Corp. v. Indian Head, Inc.,
486 U.S. 492 (1988)........cccssccssccsssessscsssecseecssecsesesseecssecsnesesesessecseesenesenees 10, 11
Andrx Pharm., Inc. v. Biovail Corp. Int'l,
256 F.3d 799 (D.C. Cir. 2001)........ccccesecssccsssesstesssecsseeseesseesscessseesseesseeesesensnes 9
Banneker Ventures, LLC v. Graham,
798 F.3d 1119 (D.C. Cir. 2015)... ccc cecccsscssscessseseeeseeecesecsseeseeesesecsnessneesees 10
Barwick v. U.S., Dep’t of Interior,
No. 89-5478, 1991 WL 65477 (D.C. Cir. Mar. 21, 1991)... eeeeseeseeneees 13
Bechtel & Cole v. Graceland Broad. Inc.,
18 F.3d 953 (D.C. Cir. 1994)... ccccccscsssesssesssscessseseecseseseneseeesseeseeeseseesnessneees 4
Chaidez v. United States,
568 U.S. 342 (2013)... cesccssccsstecssecssecsseesseecseessseesseesseceseeeseesseessseeeseseesseseneees 9
Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n,
923 F.3d 1141 (D.C. Cir. 2019)... cececcecsceseeesseeseesseseeeeenseseesaeesneseeenesenes 15
Companhia Brasileira Carbureto De Calcio v. Applied Indus. Materials Corp.,
35 A.3d 1127 (D.C. 2012) ooo. ccccscssessecscessecsecesessresreeeeeseessneneseseeeaeeeneeeneess 4
Companhia Brasileira Carbureto de Calicio v. Applied Indus. Materials Corp.,
640 F.3d 369 (D.C. Cir. 2011)... ec ececsceeseceseceeseceseeeseeeseeeseeseseeeseeeeeneeeneeeaes 13
Crane v. Carr,
814 F.2d 758 (D.C. Cir. 1987).....cccccccccssscscssccsssecssesesssecssaeecsssessseseseneessaees 5, 14
iV
67
CTS Corp. v. E.P.A.,
759 F.3d 52 (D.C. Cir. 2014)... ccccccsccssccssecssscesesesseeseeesssecsesesesesesesenesseeesaes 10
Envt'l Res. Int’l, Inc. v. Lockwood Greene Engineers, Inc.,
355 A.2d 808 (D.C. 1976) .....eccescessessccssccsecsccssesssecessseseesesssessseseseseneessessneees 4
Everett v. Nissan Motor Corp. in U.S.A.,
628 A.2d 106 (D.C. 1993) .....eceeccsscssscssscssecsscssssesseesesesesessesesesesesesesesstessnsees 6
Fandel v. Arabian Am. Oil Co.,
345 F.2d 87 (D.C. Cir. 1965) 0... ccescssssecesecsssceseeceseecssecesseseessseessnees 5, 6, 7
IGEN Int'l, Inc. v. Roche Diagnostics GmbH,
335 F.3d 303 (4th Cir. 2003) ..........cccescssscsssscssscesesesseesceessessssessseseseesseseneesnes 10
In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Litig.,
751 F.3d 629 (D.C. Cir. 2014)... ccecccesecssecscscssesesseeseseseseseseseeesesesesesseessneees 2
Jenkins v. Tatem,
795 F.2d 112 (D.C. Cir. 1986)........ccceccsstesssscssscsseceseseseseseeesesessseeeseseseessesensees 2
Layug v. Barr,
No. 91-5232, 1992 WL 311224 (D.C. Cir. Oct. 14, 1992) oo. eee 3,15
McKesson v. Doe,
141 S.Ct. 48 (2020)........ccccscsesesssecsseessecsseeeseeeseeeeseecesceseeesseeseusesesesesesssessneesnes 12
Mueller Brass Co. v. Alexander Milburn Co.,
152 F.2d 142 (D.C. Cir. 1945)... ccecccsssesseesssessecssecseeecseesssecseesseeseeeeeees 5,6
Nader v. Democratic Nat. Comm.,
567 F.3d 692 (D.C. Cir. 2009)........ccsccssscsssesssssssecssssesecesesessesssessessecnseesneeses 10
Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
572 U.S. 545 (2014)... ccccccccssccssecsssecsseeesseeecseesssesecseeseseuecenseseseneceeeeesaneres 8,9
Prof’! Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc.,
508 U.S. 49 (1993).....ccsccssscsssccssesssecseecseecseessseecuecseesseeesessseesseeesseeeseeesanesenes 11
68
Rose v. Silver,
394 A.2d 1368 (D.C. 1978)... ceeeccseccssscessseesscessteseesseseecseceensesessaceeteseeeneeenes 13
Steinberg v. Int’l Criminal Police Org.,
672 F.2d 927 (D.C. Cir. 1981)... ceceessccsesseceeecseseseseresceeseeseneeeseseeeneeeneeenenss 7
United States House of Representatives v. Mnuchin,
969 F.3d 353 (D.C. Cir. 2020)... cee cecscccsesseeseeeseeseceeresceeneecsteneeeseesseeeneesneaes 2
United States v. Naranjo,
254 F.3d 311 (D.C. Cir. 2001)... ee ceseseesscsseeseceseceseesseeseceeesseseceeeseseesseees 9
United States v. Philip Morris USA Inc.,
566 F.3d 1095 (D.C. Cir. 2009)... cccccssscceseeseesesseeeeeeseesneecacesessseeseeeeneneees 11
United States v. Philip Morris USA, Inc.,
337 F. Supp. 2d 15 (D.D.C. 2004)... ce ccccscesssesesssseseeseceeeeeeeseeeeneseneseeenes 11
Whelan v. Abell,
48 F.3d 1247 (D.C. Cir. 1995)... ceccscsscsssesecssecereseceseesseeenseseeeseseneeeeeneeenes 11
Statutes
D.C. Code § 13-423 (a)(4) ...cceccsccsscssecssecsscssecsecseecscessesesesseccseeeecseeceseeneessesaneseeesaeeaeees 3
Rules
D.C. Circuit Rule 15(C)(3) wo... ccsscsssecssssecsssccssnecsseeecseeeceseeessnesesaeessesecsseeessnesesarecsees i
D.C. Circuit Rule 28(a)(1) ......ccccccscccssccesssecsssecsseecesasesseeeceseeesaeeceeaeesseueseseeeeaneceeaeecsans i
Fed. R. App. P. 40(a)(2)......:ccccccccssccssseccsssecsssecssnecsseecesseeceseeesatessseeecsaeesesaeessnesenenecsaes 3
Fed. R. Civ. P. 35a)... ccceesccssccesecesccesceessneeseecsceseseeeaesasessaeesseeeneceseeseeseneeeneneeaneneeess 3
Vi
69
INTRODUCTION
William Browder is an American-born financier who renounced his American
citizenship to avoid paying U.S. taxes, but who regularly avails himself of the
resources of the District of Columbia—appearing in person, on television, and on
radio to tout his financial acumen and enhance his personal brand as an expert on
United States-Russia relations.
Notwithstanding his persistent course of conduct in the District of Columbia,
Browder claims that he enjoys absolute immunity from suit in this District because
all of his contacts here are in some way related to his lobbying for the Sergei
Magnitsky Rule of Law Accountability Act of 2012 (the “Magnitsky Act”), and thus,
by operation of the government contacts exception to the District’s long-arm statute,
his extensive activities in the District count for nothing in the jurisdictional analysis.
The district court erroneously agreed, refused Respondent’s request for jurisdictional
discovery, and granted Browder’s motion based on an erroneous view of the law and
entirely on Browder’s own account of his local contacts. However, on December
29, 2020, the Panel vacated the judgment of the district court, reversed its refusal to
allow jurisdictional discovery, and remanded the matter to allow the district court to
supplement the existing record, and to rule again on Browder’s personal jurisdiction
motion and, if necessary, on Browder’s Rule 12(b)(6) motion to dismiss. On January
12, 2021, Browder filed the instant petition.
70
Browder’s petition for rehearing en banc/panel rehearing should be denied as
Browder has failed to identify a basis for this Court’s review. First, he does not cite
any controlling authority that the Panel may have overlooked. There is no question
as to the scope of the government contacts exception to this District’s long-arm
statute: it “consist[s] of direct contact with members, agents, or instrumentalities of
the federal government,” A20. Under this standard, Browder’s repeated travel to
this District to appear on television and radio, give magazine interviews, promote
his book, and attend private events cannot be characterized as government contacts
and “should be included in the jurisdictional calculus.” Jd. Second, it would be
premature to resolve any remaining legal questions raised in the Panel’s decision at
this juncture. Should the district court find on remand (after jurisdictional discovery)
that it has personal jurisdiction under the D.C. long-arm statute, any outstanding
constitutional question will be moot.
LEGAL STANDARD
It is well-established that “[r]ehearing en banc should be rare,” United States
House of Representatives v. Mnuchin, 969 F.3d 353, 357 (D.C. Cir. 2020) (Griffith,
J., dissenting from denial of en banc), and the standards for granting an en
banc proceeding “are demandingly high,” Jenkins v. Tatem, 795 F.2d 112, 114 (D.C.
Cir. 1986). Such review “is reserved for ‘question[s] of exceptional importance’ or
to preserve ‘uniformity of the court’s decisions.’” In re Long-Distance Tel. Serv.
71
Fed. Excise Tax Refund Litig., 751 F.3d 629, 636 (D.C. Cir. 2014) (quoting Fed. R.
Civ. P. 35(a)). Similarly, panel rehearing is not appropriate in the absence of “points
of law or fact . . . the court previously overlooked or misapprehended.” Layug v.
Barr, No. 91-5232, 1992 WL 311224, at *1 (D.C. Cir. Oct. 14, 1992) (quoting Fed.
R. App. P. 40(a)(2)).
ARGUMENT
I. THE COURT SHOULD DENY BROWDER’S PETITION FOR
REHEARING EN BANC
A. The Panel Decision Was Correct Under Applicable Law
1. The Panel Majority Applied the Government Contacts
Exception Consistent with the District of Columbia’s and
This Court’s Precedent
Application of the government contacts exception is “straightforward with
respect to the matters at issue in this case,” A17; namely, Browder’s conduct in this
District should be factored into the “persistent course of conduct” jurisdictional
calculus under D.C. Code § 13-423(a)(4) unless it “consist[s] of direct contact with
members, agents, or instrumentalities of the federal government,” A20. Under this
standard, Browder’s repeated travel to this District to appear on television and radio,
give magazine interviews, promote his book, and attend private events cannot be
characterized as government contacts and “should be included in the jurisdictional
calculus.” A20.
The Panel’s holding is consistent with this Circuit’s and District of Columbia
3
72
precedent. In Bechtel & Cole v. Graceland Broad. Inc., 18 F.3d 953 (D.C. Cir.
1994), a panel of this Court explicitly held that “discretionary” conduct “not
dependent on ‘the unique character of the District as the seat of national government’
... fall[s] outside the protective scope of the government contacts doctrine.” Jd. at
953 (quoting Envt’l Res. Int’l, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d
808, 813 (D.C. 1976)). This holding is consistent with the D.C. Court of Appeals’
decision in Environmental Research, on which it relies, which “made it clear that
the government contacts exception applies when nonresidents’ ‘so/e contact with the
District consists of dealing with a federal instrumentality.’” A17 (quoting Envt’l
Res. Int'l, 355 A.2d at 813); see also Companhia Brasileira Carbureto De Calcio v.
Applied Indus. Materials Corp., 35 A.3d 1127, 1131 (D.C. 2012) (same).
Here, Browder’s appearances on television and radio, his participation in
magazine interviews, and his attendance at social and business events in this District
were the very definition of “discretionary.”! The fact that Browder may also have
! A review of the entirety of the governments contacts case law in both this Circuit
and in the D.C. Court of Appeals reveals that the only types of “uniquely
governmental activities” that courts in this Circuit have found to qualify under the
government contacts doctrine are: (1) directly lobbying federal departments or
agencies; (2) being a member of a federal department or agency; (3) attending
meetings at, or communicating with, federal departments and agencies;
(4) contacting an attorney related to a company’s business or litigation with a federal
agency; (5) keeping an office in the District for the sole purpose of maintaining
contact with federal departments and agencies; (6) accepting money or business
contracts from a federal department or agencies; or (7) membership in a trade
4
73
had meetings with federal departments or agencies in the same trip that he engaged
in such “discretionary” conduct does not insulate these activities from the
jurisdictional analysis. Rather, as the Panel did, a court must consider each contact
with the District individually, including over the course of a single trip to the District.
See, e.g., Crane v. Carr, 814 F.2d 758, 764 (D.C. Cir. 1987) (remanding case for
jurisdictional discovery so plaintiff could “seek a more detailed delineation of
[defendant’s] activities in the District”). Otherwise, all conduct in the District, no
matter how injurious, could be immunized by any direct contact with a government
instrumentality—which is exactly what Browder is trying to do here.
Browder erroneously argues that the Panel’s decision “departs from this
Court’s prior articulation of the government contacts exception” pre-dating
Environmental Research, Pet. 14 (citing Mueller Brass Co. v. Alexander Milburn
Co., 152 F.2d 142 (D.C. Cir. 1945) and Fandel v. Arabian Am. Oil Co., 345 F.2d 87(D.C. Cir. 1965)). In particular, he contends that these earlier cases “appl[ied] the
government contacts exception based upon the purpose of [the corporation-
defendant’s] office [in the District], and did not ask whether the company’s ‘sole
contact’ with the District was communication with federal officials.” Pet. 15. The
Panel Majority soundly rejected this tendentious gloss, holding that such reasoning
association or group located in the District. See Appellant Br. at 18-19 & nn. 5-11
(collecting cases).
5
74
“would mean that a defendant who has even a single contact with the federal
government in support of a policy agenda may then exclude al/ contacts with the
District that can be somehow construed as efforts to advance that agenda.” A20-21.
Browder provides no coherent argument to the contrary.
The parallel that Browder attempts to draw between himself and the
corporation-defendants in Fandel and Mueller Brass cannot withstand scrutiny. In
those cases, the defendants’ reason (or “purpose”’) for existing was to “gather[]
information from Government departments and agencies.” Mueller Brass Co., 152
F.2d at 143; see also Fandel, 345 F.2d at 88-89 (finding no general jurisdiction
where the purpose of defendant’s office in the District was to act as “its state
department” regarding “the Middle East generally and Saudi Arabia in particular’’);
Everett v. Nissan Motor Corp. in U.S.A., 628 A.2d 106, 110 (D.C. 1993) (finding no
general jurisdiction where defendant’s activities in the District were conducted
“solely for the purpose of gathering information from the federal government”)
(citation omitted). Browder cannot credibly maintain that his sole reason for existing
is to petition the federal government. Moreover, the parties in those cases were
corporations; Browder cites no case supporting applying this logic to individuals.
Additionally, Browder conspicuously omits that the cited cases were about
the imposition of general jurisdiction, not specific jurisdiction. See Mueller Brass
Co., 152 F.2d at 144 (evaluating whether defendants’ activities “constitute[d] doing
15
business in the District of Columbia in the jurisdictional sense”’); Fandel, 345 F.2d
at 88-89 (same). By contrast, here, the issue is whether Akhmetshin has
demonstrated that Browder has engaged in a “persistent course of conduct” in the
District under the long-arm statute. Unlike general jurisdiction, establishing a
“persistent course of conduct” is “not a particularly high bar.” A24; see also
Steinberg v. Int’l Criminal Police Org., 672 F.2d 927, 931 (D.C. Cir. 1981) (holding
that “the ‘persistent course of conduct’ to which the statute refers denotes
connections considerably less substantial than those required to establish general,
‘all purpose’ jurisdiction on the basis of ‘doing business’ in the forum”).
Akhmetshin has more than met this requirement.
Equally spurious is Browder’s argument that his non-governmental activities
were not discretionary and only occurred in the District “because the District is the
seat of national government.” Pet. 7. As Browder notes in his petition, he is more
than capable of engaging in interviews “while he [i]s out of the District,” and, as a
result, these discretionary activities must be factored into the jurisdictional analysis.
Id. (emphasis in original).
Therefore, as the Panel’s decision is consistent with this District’s and this
Circuit’s precedents, Browder’s petition should be denied. As both the Panel
Majority and Dissent agree—and as Browder does not dispute—there is no
“controlling authority postdating Environmental Research International that applies
76
the government contacts exception to conduct not involving direct contact with
members of the federal government or government agencies.” A31 (citing A18).
This alone is a sufficient basis on which to deny Browder’s petition.
2. Browder’s Argument Regarding the Noerr-Pennington
Doctrine Should Be Deemed Waived
Browder argues for the first time that the Noerr-Pennington doctrine? should
“defin[e] the scope of the Petition Clause of the First Amendment . . . regarding the
government contacts exception.” Pet 8-9. This argument should be deemed waived
and, in any event, is incorrect as a matter of law, see infra.
There is no merit to Browder’s novel assertion of a “plain conflict” between
the Panel’s opinion concerning the government contacts exception’s “direct contacts
limitation” and the Noerr-Pennington doctrine’s supposed mandate “that indirect
efforts to persuade the federal government, including appeals made via mass media,
are entitled to the same protections as advocates’ direct government engagements.”
Pet. 2 (emphasis omitted); see also id. 12-14. However “plain” this conflict may
now be to Browder, he failed to raise it before the district court or the Panel of this
Court. See JA? 26-78 (Browder’s motion to dismiss); Appellee’s Br. As this Circuit
2 The Noerr-Pennington doctrine immunizes parties “from antitrust liability for
engaging in conduct . . . aimed at influencing decisionmaking by the government.”
Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 555-56 (2014).
3 “JA” refers to the Joint Appendix submitted with the original appeal.
8
7
has “a well-established rule against allowing parties to initiate new claims on
appeal,” the Court should decline to consider Browder’s new legal argument. United
States v. Naranjo, 254 F.3d 311, 313 (D.C. Cir. 2001); see also Chaidez v. United
States, 568 U.S. 342, 358 n.16 (2013) (declining to consider petitioner’s new
arguments, inter alia, because she did not “adequately raise them in the lower
courts,” but “[o]|nly [in] her petition for rehearing en banc”).
3. Even if the Argument Is Not Waived, the Noerr-Pennington
Doctrine Is Not Applicable to This Case
Even if the Court is inclined to consider Browder’s Noerr-Pennington
argument, the doctrine is inapplicable for three reasons.
First, and most basically, the Noerr-Pennington doctrine only applies to
antitrust cases. As this Circuit has explained, while the doctrine “is rooted in First
Amendment law,” it “rests ultimately upon a recognition that the antitrust laws,
tailored as they are for the business world, are not at all appropriate for application
in the political arena.” Andrx Pharm., Inc. v. Biovail Corp. Int’l, 256 F.3d 799, 817
(D.C. Cir. 2001) (emphasis added). The Supreme Court has similarly emphasized
that, under the Noerr-Pennington doctrine, “defendants are immune from antitrust
liability.” Octane Fitness, LLC, 572 U.S. at 555-56 (emphasis added).
Browder cites no precedent for an all-purpose application of this doctrine
78
outside of the antitrust context, except in a single footnote.* Nor could he; as a panel
of this Court has stated, “[t]o our knowledge, [the D.C. Circuit] ha[s] never applied
the Noerr-Pennington doctrine, which arose in the context of the antitrust laws, to
bar liability for common law torts,” such as defamation. Banneker Ventures, LLC v.
Graham, 798 F.3d 1119, 1137 n.8 (D.C. Cir. 2015). Therefore, as this action does
not involve antitrust liability, the Noerr-Pennington doctrine and its interpretation
of the Petition Clause are irrelevant.
Second, even if the Noerr-Pennington doctrine could be asserted in this
action, it is unconnected to the question of personal jurisdiction. As both this Circuit
4 In that footnote, Browder conclusorily states that “[t]he rationale of Noerr-
Pennington extends beyond antitrust cases to the substantive scope of the Petition
Clause right under the First Amendment.” Pet. 14 n.4. As an initial matter, the Court
should not consider this argument because an oblique “footnote in [an] opening brief
... 18 no place to make a substantive legal argument on appeal; hiding an argument
there and then articulating it in only a conclusory fashion results in forfeiture.” C7S
Corp. v. E.P.A., 759 F.3d 52, 64 (D.C. Cir. 2014). Moreover, none of the cases cited
by Browder supports extending the Noerr-Pennington doctrine beyond the antitrust
context. See, e.g., Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492,
499, 503 (1988) (holding that “[c]oncerted efforts to restrain or monopolize trade by
petitioning government officials,” including “a form of indirect petitioning,” are
“protected from antitrust liability under the doctrine established by Noerr’)
(emphasis added) (internal quotation marks omitted); Nader v. Democratic Nat.
Comm., 567 F.3d 692, 696 (D.C. Cir. 2009) (discussing “as an abstract matter”
whether “common law torts of malicious prosecution and abuse of process” might
fall under the Noerr-Pennington doctrine). To the extent that other circuits have
expanded the Noerr-Pennington doctrine to include “business torts” such as
“malicious prosecution, tortious interference with contract, tortious interference
with prospective economic advantage, and unfair competition,” see, e.g., IGEN Int'l,
Inc. v. Roche Diagnostics GmbH, 335 F.3d 303, 310 (4th Cir. 2003), such exceptions
would not be applicable here.
10
79
and the Supreme Court have explained, the Noerr-Pennington doctrine is a defense
to liability, not to a court’s exercise of personal jurisdiction. See, e.g., Prof’l Real
Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 56 (1993)
(explaining that, under the Noerr-Pennington doctrine, “[t]hose who petition
government for redress are generally immune from antitrust liability”); Whelan v.
Abell, 48 F.3d 1247, 1259 (D.C. Cir. 1995) (stating “the Noerr-Pennington defense”
is “a defense that [the defendant] may prove at trial”). Browder cites no case to
support grafting a merits-based, “fact-intensive inquiry that can only be resolved at
trial” onto a court’s jurisdictional analysis. United States v. Philip Morris USA, Inc.,
337 F. Supp. 2d 15, 26-27 (D.D.C. 2004).°
Third, the Noerr-Pennington doctrine does not apply to Browder for the same
reason that the government contacts exception does not apply: he is a non-resident
alien who voluntarily disavowed the benefits of U.S. citizenship and, therefore, lacks
standing to cloak himself in the protection of a doctrine “rooted in the Petition Clause
of the First Amendment.” United States v. Philip Morris USA Inc., 566 F.3d 1095,
1123 (D.C. Cir. 2009); see also A36 (“[I]t is far from clear whether the right to
petition the government extends to Browder as a non-citizen.”’).
> Moreover, this assumes that Browder’s contacts are fairly characterized as
“petitioning,” which they should not be. See Allied Tube, 486 U.S. at 507 (stating
Noerr-Pennington doctrine should not “immunize what are in essence commercial
activities simply because they have a political impact”). Any resolution of this issue
would, at a minimum, require jurisdictional discovery.
11
80
Therefore, as the Panel’s decision is consistent with this District’s and this
Circuit’s precedents, the Court should deny Browder’s petition for rehearing en
banc.
B. The Petition Does Not Otherwise Present a Question of Exceptional
Importance Under Federal Law
1. An En Banc Court Cannot Resolve the Remaining State Law
Question
As the Panel correctly held that the government contacts exception is limited
to those who seek to influence federal legislation and policy through direct contacts
with government officials, the only remaining legal question is “whether the
government contacts exception applies to a nonresident alien.” A16; see also A30.
However, as the entire Panel acknowledges, this is purely a question of state law that
cannot be resolved by a federal court. See Al6 (“If the only dispositive legal
question outstanding in this case was whether the government contacts exception
applies to nonresident aliens, certification to the Court of Appeals likely would be
appropriate.”); A35 (stating this question “implicates a potential conflict between
two decisions of the D.C. Court of Appeals—a conflict only that court may resolve”
(emphasis added)). In fact, the Supreme Court recently warned federal courts
against “[s]peculat[ing]” about “novel issues of state law peculiarly calling for the
exercise of judgment by the state courts,” McKesson v. Doe, 141 S.Ct. 48, 51 (2020)
(per curiam) (internal quotation marks omitted), because “the District of Columbia
12
81
Court of Appeals could, at any time, speak to the exact issue presented here [and,
therefore,] anything this Court could decide through the en banc process could be
voided immediately,” Barwick v. U.S., Dep’t of Interior, No. 89-5478, 1991 WL
65477, at *1 (D.C. Cir. Mar. 21, 1991).° Therefore, this Court should deny
Browder’s petition for en banc review.
2. Resolution of the State Law Question Would Be Premature
Even if this Court is inclined to resolve the remaining legal question, it would
be premature to do so at this juncture. As the Panel Majority explained, “the wisest
course for now is to simply assume, without deciding, that the government contacts
exception applies to the contacts of nonresident aliens” because “there are other
grounds that might dispose of this case without any need to determine whether the
government contacts exception applies to nonresident aliens.” A16. In particular,
should the district court find on remand (after jurisdictional discovery) that it has
personal jurisdiction under the D.C. long-arm statute, the constitutional question will
be moot. This holding is consistent with this Circuit’s precedent that “[c]ourts
should not decide constitutional questions when alternative grounds for decision are
6 While the Panel Dissent is correct that this Court has “previously certified a
different question to the D.C. Court of Appeals due to the very uncertainty that Rose
v. Silver, 394 A.2d 1368 (D.C. 1978)] created,” the decision to certify was made by
a panel of this Court, not during en banc review. A35 (discussing Companhia
Brasileira Carbureto de Calicio v. Applied Indus. Materials Corp., 640 F.3d 369,
371 (D.C. Cir. 2011)).
13
82
fairly available.” Al Hela v. Trump, 972 F.3d 120, 143-44 (D.C. Cir. 2020)
(collecting cases); see also Holmes v. F.E.C., 823 F.3d 69, 70 n.1 (D.C. Cir. 2016)
(noting that the Court previously remanded case so that the district court could
develop “the factual record necessary for en banc review”). Therefore, the Court
should deny Browder’s petition for en banc review.
3. Browder’s “Slippery Slope” Argument Is Unavailing
In an attempt to avoid this Circuit’s clear precedents, Browder warns that the
Panel’s decision presents a slippery slope. In particular, he contends, “[b]ecause
nearly all visitors to D.C. engage in some nongovernmental contacts during their
visits, future plaintiffs will be able to establish jurisdiction by itemizing
nonresidents’ social visits and commercial transactions (travel, meals,
entertainment) that take place during visits to engage with the federal government.”
Pet. 11-12 (emphasis in original). His purported concern is misplaced. The very
purpose of the long-arm statute’s “persistent course of conduct” standard is to “filter
out cases in which the inforum impact is an isolated event and the defendant
otherwise has no, or scant, affiliations with the forum.” Crane, 814 F.2d at 763. But
that is not the situation here: in this case, Browder availed himself of the resources
of the District of Columbia, appearing repeatedly in person, on television, and on
radio to promote his personal brand, strengthen his professional and social network,
and protect his substantial personal fortune. This was no “isolated event;” as
14
83
Browder himself bragged in 2018, he has “had three careers so far,” including “a
career in Washington.” JA 183; 261.
In essence, Browder is arguing that any of his non-governmental activities in
the District should automatically convert into protected government contacts once
he utters the phrase “Magnitsky Act.” In fact, according to Browder, as long as there
is a theoretical chance that a lawmaker might be in the same room when he is
speaking, happens to watch television at an auspicious moment when he is being
interviewed, or attends the same party, he is engaging in “advocacy efforts.” Pet. 6—
7. The Panel correctly (and soundly) rejected such a nonsensical extension of the
government contacts exception, holding it would “swallow the rule.” A21. Browder
cannot stymie review of his non-government contacts by “uttering magic words.”
Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 923
F.3d 1141, 1144 (D.C. Cir. 2019) (Pillard, J., dissenting from denial of rehearing en
banc). He should, therefore, be subject to this District’s personal jurisdiction.
I. THE COURT SHOULD DENY BROWDER’S PETITION FOR PANEL
REHEARING
For the reasons stated above, Browder has failed to state “any points of law
or fact . . . the court previously overlooked or misapprehended.” Layug, 1992 WL
311224, at *1. To the extent there are any factual disputes about Browder’s non-
governmental activities, see Pet. 7, they can be resolved by the district court
15
84
following jurisdictional discovery. See A25—26. Therefore, Browder’s petition for
panel rehearing should also be denied.
CONCLUSION
For the foregoing reasons, Browder’s petition should be denied.
Dated: February 3, 2021
New York, New York
/s/Michael Tremonte
Michael Tremonte
Alexandra G. Elenowitz-Hess
Sher Tremonte LLP
90 Broad Street, 234 Floor
New York, New York 10004
(212) 202-2600
(fax) 212-202-4156
mtremonte@shertremonte.com
ahess@shertremonte.com
16
85
CERTIFICATE OF COMPLIANCE
This brief complies with Rule 32(a)(7)(B) because it contains 3,768 words,
excluding the parts exempted by Rule 32(f) and Circuit Rule 32(c)(1). This brief
also complies with Rule 32(a)(5)-(6) because it is prepared in a proportionally
spaced typeface using Microsoft Word in 14-point Times New Roman font.
Dated: February 3, 2021 /s/Michael Tremonte
Michael Tremonte
17
86
CERTIFICATE OF SERVICE
I, Michael Tremonte, hereby certify that the foregoing was served on all
counsel of record in case number 19-7129 through the electronic filing system
(CM/ECF) of the U.S. Court of Appeals for the District of Columbia Circuit.
/s/Michael Tremonte
Michael Tremonte
Sher Tremonte LLP
90 Broad Street, 23"! Floor
New York, New York 10004
(212) 202-2600
(fax) 212-202-4156
mtremonte@shertremonte.com
18