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Rinat AKHMETSHIN, Appellant v. William BROWDER, Appellee
Table of Contents
Opinion Accompanying Certification of Questions to the Questions to the D.C. Court of Appeals․924
Original Panel Opinion and Dissenting Opinion․929
Defendant-Appellee's Petition for Panel Rehearing or Rehearing En Banc․951
Plaintiff-Appellant's Response to the Petition for Panel Rehearing and Rehearing En Banc․960
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 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. Id. 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.
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.
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 within the District – regardless of whether it included direct contacts with Federal Government agencies or officials – under the exception. Id. 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.’ ” Id. 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.
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. Id. at 560. Like the majority, he believed that there was genuine uncertainty “as to whether a foreign citizen may invoke the government contacts exception.” Id. 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 arguments, we have concluded that the matters in dispute are best resolved by the D.C. Court of Appeals. See McKesson v. Doe, ––– U.S. ––––, 141 S. Ct. 48, 51, 208 L.Ed.2d 158 (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 bane, 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.” Id. (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.” Id. (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.” Id. And other phrases indicate that the 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. Skillman, 579 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, 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 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)).
III. 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).
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. If the first question is answered in the affirmative, must those nonresident aliens possess cognizable rights pursuant to the First Amendment generally, 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. If the 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.
ATTACHMENT
Original Panel Opinion and Dissenting Opinion
Defendant-Appellee's Petition for Panel Rehearing or Rehearing En Banc
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․952
TABLE OF AUTHORITIES․952
INTRODUCTION AND RULE 35 STATEMENT․953
STATEMENT OF THE CASE․953
REASONS FOR GRANTING THE PETITION․954
I. The Panel Materially Misread the Factual Record․954
II. The Panel's "Direct Contact" Limitation Conflicts With Binding Precedents And Would Upend The Purpose Of The Government Contacts Exception․956
A. The "Direct Contact" Limitation Departs From The Holding And Purpose Of Environmental Research․956
B. The "Direct Contact" Limitation Conflicts With the Supreme Court's Noerr-Pennington Doctrine․958
C. The "Direct Contact" Limitation Conflicts With This Court's Seminal Government Contacts Exception Precedents․958
CONCLUSION․960
CERTIFICATE OF COMPLIANCE․960
CERTIFICATE OF SERVICE․960
ADDENDUM
Akhmetshin v. Browder, 983 F.3d 542 (D.C. Cir. 2020)․960
Certificate As To Parties, Rulings, And Related Cases․961
TABLE OF AUTHORITIES
Page(s)
Cases
Akhmetshin v. Browder, 407 F. Supp. 3d 11 (D.D.C. 2019)․953, 954, 956
Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988)․958
Companhia Brasileira Carbureto De Calcio v. Applied Indus. Materials Corp., 35 A.3d 1127 (D.C. 2012)․957, 957
E. R.R. Presidents Conj v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961)․953, 958
Envtl. Research Int 'l, Inc. v. Lockwood Greene Eng 'rs, Inc., 355 A.2d 808 (D.C. 1976)․953, 956, 957, 957, 957, 960
Everett v. Nissan Motor Corp. in US.A., 628 A.2d 106 (D.C. 1993)․957, 959
Fandel v. Arabian American Oil Co., 345 F.2d 87 (D.C. Cir. 1965)․959
Fed. Prescription Serv., Inc. v. Am. Pharm. Ass 'n, 663 F.2d 253 (D.C. Cir. 1981)․958
Groop Internet Platform Inc. v. Psychotherapy Action Network, No. CV 19-1854 (BAH), 2020 WL 353861 (D.D.C. Jan. 21, 2020)․959
Hughes v. A.H. Robins Co., 490 A.2d 1140 (D.C. 1985)․959
Inv. Co. Inst. v. United States, 550 F. Supp. 1213 (D.D.C. 1982)․959
Jung v. Ass 'n of Am. Med. Coils., 300 F. Supp. 2d 119 (D.D.C. 2004) Jung v. Ass 'n of Am. Med. Coils., 300 F. Supp. 2d 119 (D.D.C. 2004)․959
Mueller Brass Co. v. Alexander Milburn Co., 152 F.2d 142 (D.C. Cir. 1945)․959
Nader v. Democratic Nat'! Comm., 567 F.3d 692 (D.C. Cir. 2009)․958
Sierra Club v. Tenn. Valley Auth., 905 F. Supp. 2d 356 (D.D.C. 2012)․959
United Therapeutics Corp. v. Vanderbilt Univ., 278 F. Supp. 3d 407 (D.D.C. 2017)․956, 959
World Wide Minerals Ltd. v. Republic of Kazakhstan, 116 F. Supp. 2d 98 (D.D.C. 2000)․959
Rules
Fed. R. App. P. 35(a)(1)-(2)․953
Fed. R. App. 40(a)(2)․953
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 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, 81 S.Ct. 523, 5 L.Ed.2d 464 (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).
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).1 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. Id. 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 Associated Press addressing Akhmetshin's ties to Russian intelligence. Compl. ¶¶ 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.3d 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 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 953–54. For example, the panel relied upon Plaintiff's 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 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 2 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 3 ; and (5) the funeral of Magnitsky Act Co-Sponsor Sen. John McCain, attended by dozens of government officials (JA336).
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” 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.3d 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 954–56. 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 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 Envtl. 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.” Id. 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 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 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.” Envtl. 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 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. 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. Id.
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, 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, 81 S.Ct. 523, 5 L.Ed.2d 464 (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, 81 S.Ct. 523. 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.” Id. at 142, 81 S.Ct. 523 (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, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988) (internal quotation marks omitted); see id. at 499, 510, 108 S.Ct. 1931 (protecting efforts to influence “governments through direct 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 (App.D.C. 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. Id. at 143–44. Despite the fact that doing so would necessarily require numerous transactions, over many years, with private companies and individuals (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.5 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. Id. 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.” Id. at 88-89. If the defendant oil company's “social” visits and non-governmental 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.6
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 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
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)(l); 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
CERTIFICATE OF SERVICE
I hereby 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
ATTACHMENT
Plaintiff-Appellant's Response to the Petition for Panel Rehearing and Rehearing En Banc
ORAL ARGUMENT HELD ON SEPTEMBER 22, 2020
United States Court of Appeals
for 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
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, 983 F.3d 542 (D.C. Cir. 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).
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES․961
INTRODUCTION․962
LEGAL STANDARD․963
ARGUMENT․963
I. THE COURT SHOULD DENY BROWDER'S PETITION FOR REHEARING EN BANC․963
A. The Panel Decision Was Correct Under Applicable Law․963
1. The Panel Majority Applied the Government Contacts Exception Consistent with the District of Columbia's and This Court's Precedent․963
2. Browder's Argument Regarding the Noerr-Pennington Doctrine Should Be Deemed Waived․965
3. Even if the Argument Is Not Waived, the Noerr-Pennington Doctrine Is Not Applicable to This Case․966
B. The Petition Does Not Otherwise Present a Question of Exceptional Importance Under Federal Law․967
1. An En Banc Court Cannot Resolve the Remaining State Law Question․967
2. Resolution of the State Law Question Would Be Premature․968
3. Browder's "Slippery Slope" Argument Is Unavailing․968
THE COURT SHOULD DENY BROWDER'S PETITION FOR PANEL REHEARING․969
CERTIFICATE OF COMPLIANCE․969
CERTIFICATE OF SERVICE․969
TABLE OF AUTHORITIES
Page(s)
Cases
Al Hela v. Trump, 972 F.3d 120 (D.C. Cir. 2020)․968
Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988)․966, 967
Andrx Pharm., Inc. v. Biovail Corp. Int 'l, 256 F.3d 799 (D.C. Cir. 2001)․966
Banneker Ventures, LLC v. Graham, 798 F.3d 1119 (D.C. Cir. 2015)․967
Barwick v. US., Dep 't of Interior, No. 89-5478, 1991 WL 65477 (D.C. Cir. Mar. 21, 1991)․968
Bechtel & Cole v. Graceland Broad. Inc., 18 F.3d 953 (D.C. Cir. 1994) ․964
Chaidez v. United States, 568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013)․966
Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm 'n, 923 F.3d 1141 (D.C. Cir. 2019)․969
Companhia Brasileira Carbureto De Calcio v. Applied Indus. Materials Corp., 35 A.3d 1127 (D.C. 2012)․964
Companhia Brasileira Carbureto de Calicio v. Applied Indus. Materials Corp., 640 F.3d 369 (D.C. Cir. 2011)․968
Crane v. Carr, 814 F.2d 758 (D.C. Cir. 1987)․964, 968
CTS Corp. v. E.P.A., 759 F.3d 52 (D.C. Cir. 2014)․966
Envt'I Res. Int'l, Inc. v. Lockwood Greene Engineers, Inc., 355 A.2d 808 (D.C. 1976)․964
Everett v. Nissan Motor Corp. in U.S.A., 628 A.2d 106 (D.C. 1993)․965
Fandel v. Arabian Am. Oil Co., 345 F.2d 87 (D.C. Cir. 1965)․964, 965, 965
IGEN Int'l, Inc. v. Roche Diagnostics GmbH, 335 F.3d 303 (4th Cir. 2003)․967
In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Litig., 751 F.3d 629 (D.C. Cir. 2014)․963
Jenkins v. Tatem, 795 F.2d 112 (D.C. Cir. 1986)․963
Layug v. Barr, No. 91-5232, 1992 WL 311224 (D.C. Cir. Oct. 14, 1992)․963, 969
McKesson v. Doe, ––– U.S. ––––, 141 S.Ct. 48, 208 L.Ed.2d 158 (2020)․968
Mueller Brass Co. v. Alexander Milburn Co., 152 F.2d 142 (App.D.C. 1945)․964,965
Nader v. Democratic Nat. Comm., 567 F.3d 692 (D.C. Cir. 2009)․966
Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014)․965, 966
Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993)․967
Rose v. Silver, 394 A.2d 1368 (D.C. 1978)․968
Steinberg v. Int'l Criminal Police Org., 672 F.2d 927 (D.C. Cir. 1981)․965
United States House of Representatives v. Mnuchin, 969 F.3d 353 (D.C. Cir. 2020)․963
United States v. Naranjo, 254 F.3d 311 (D.C. Cir. 2001)․966
United States v. Philip Morris USA Inc., 566 F.3d 1095 (D.C. Cir. 2009)․967
United States v. Philip Morris USA, Inc., 337 F. Supp. 2d 15 (D.D.C. 2004)․967
Whelan v. Abell, 48 F.3d 1247 (D.C. Cir. 1995)․967
Statutes
D.C. Code§ 13-423(a)(4)․963
Rules
D.C. Circuit Rule 15(c)(3)․961
D.C. Circuit Rule 28(a)(1)․961
Fed. R. App. P. 40(a)(2)․963
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.
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.” Id. 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. 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 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.” Id. 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' ‘sole 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.”1 The fact that Browder may also have 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 (App.D.C. 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 “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 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 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 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 2 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 3 26–78 (Browder's motion to dismiss); Appellee's Br. As this Circuit 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, 133 S.Ct. 1103, 185 L.Ed.2d 149 (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, 134 S.Ct. 1749 (emphasis added).
Browder cites no precedent for an all-purpose application of this doctrine outside of the antitrust context, except in a single footnote.4 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 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, 113 S.Ct. 1920, 123 L.Ed.2d 611 (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).5
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.”).
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, ––– U.S. ––––, 141 S.Ct. 48, 51, 208 L.Ed.2d 158 (2020) (per curiam) (internal quotation marks omitted), because “the District of Columbia 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).6 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 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 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 governent 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-governent 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 bane). He should, therefore, be subject to this District's personal jurisdiction.
II. 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 nongovernmental activities, see Pet. 7, they can be resolved by the district court 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
New York, New York
/s/ Michael Tremonte
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
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
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, 23rd Floor
New York, New York 10004
(212) 202-2600
(fax) 212-202-4156
mtremonte@shertremonte.com
FOOTNOTES
1. “JA” refers to the Joint Appendix submitted with the original appeal.
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.mccaininstifute.org/events/book-discussion-with-bill-browder/.
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).
5. 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 nongovernmental 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).
6. 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.3d 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 nongovernmental organizations, including trade associations).
1. 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 association or group located in the District. See Appellant Br. at 18-19 & nn. 5-11 (collecting cases).
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, 134 S.Ct. 1749, 188 L.Ed.2d 816 (2014).
3. “JA” refers to the Joint Appendix submitted with the original appeal.
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 ․ is 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.” CTS 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, 108 S.Ct. 1931, 100 L.Ed.2d 497 (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.
5. 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, 108 S.Ct. 1931 (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.
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)).
Edwards, Senior Circuit Judge:
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Docket No: No. 19-7129
Decided: April 13, 2021
Court: United States Court of Appeals, District of Columbia Circuit.
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