Rinat Akhmetshin v. William Browder

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2020 Decided December 29, 2020

No. 19-7129

R
INAT AKHMETSHIN,
APPELLANT

v.

W
ILLIAM BROWDER,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01638)

Michael Tremonte argued the cause for appellant. With
him on the briefs was Alexandra Elenowitz-Hess.

Michael J. Gottlieb argued the cause and filed the brief for
appellee. With him on the brief was Stephanie L. Miner.

Before: T
ATEL and KATSAS, Circuit Judges, and
E
DWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
E
DWARDS.

Dissenting opinion filed by Circuit Judge T
ATEL.

2

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 Federation, filed a defamation action in the
District Court against Appellee William Browder, a
nonresident alien and citizen of the United Kingdom. See J.A.
7- 20. The District Court had subject-matter jurisdiction on
diversity-of-citizenship grounds. See 28 U.S.C. § 1332(a)(2).
Akhmetshin’s complaint cites several incidents 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
Business Insider in which Browder described Akhmetshin as
“a member of Putin’s secret police”; and (3) a television
interview during which Browder described 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
Procedure 12(b)(2) for lack of personal jurisdiction. 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 jurisdiction
statute. D.C.
CODE § 13-423(a)(4) (2001).
Section 13-423(a)(4) authorizes the “exercise [of] personal
jurisdiction over a person” who has “caus[ed] tortious injury in
the District of Columbia by an act or omission outside the
District of Columbia.” Any such party over whom personal
jurisdiction 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 do[ing]
or solicit[ing] business, [2] engag[ing] in any other persistent
course of conduct, or [3] deriv[ing] substantial revenue from

3

goods used or consumed, or services rendered.” D.C. CODE
§ 13-423(a)(4). However, “entr[ies] into the District . . . by
nonresidents for the purpose of contacting federal
governmental agencies [or instrumentalities]” do not factor
into the jurisdictional 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
occasions. While on these trips, he has, among other things,
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, and attended personal events such as social dinners
and a funeral. See, e.g., J.A. 197-98, 202, 203, 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 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). 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 jurisdiction. 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 remaining contacts with the

4

District, based on the then-existing record, were not sufficient
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-government 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
granting judgment for Browder and denying jurisdictional
discovery. Therefore, we have no sound basis upon which to
credit the District Court’s judgment. Accordingly, we are
constrained to vacate the judgment under review and remand
the case for jurisdictional discovery.
I. B
ACKGROUND
A. Browder’s Background and Contacts with the
District of Columbia
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 discovered
that Russian government officials and members of organized
crime had used Hermitage portfolio companies to perpetrate a
$230 million tax fraud scheme. See J.A. 39-40, 108. Magnitsky
was then arrested by Russian authorities and, in November
2009, died in a Russian prison. See J.A. 39-40, 137.
After being notified of Magnitsky’s death, Browder sought
accountability for those he believed responsible. See, e.g., J.A.

5

196-98. In the United States, his efforts took the form of
lobbying and advocating for the Magnitsky Act, which
authorizes 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 Magnitsky Act §§ 404, 406. In June 2009,
Browder testified before the Commission on Security and
Cooperation in Europe (the “Helsinki Commission”) – an
independent commission of the federal
government – regarding the circumstances of Magnitsky’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 culminated 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
testimony before a Congressional committee on one occasion
in 2015, as well as testimony before the Helsinki Commission
and a separate Congressional committees on two separate trips
in 2017. See J.A. 16-17. The trips have also included
attendance at an April 2013 reception, see J.A. 184, 325-26,
sitting for an interview published in BBC News magazine in
December 2013, see J.A. 181, 211-33, attendance at a book
release event in January 2014, see J.A. 184, 327-34,
participation in an April 2015 panel discussion at the National
Endowment for Democracy, 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
separate 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 November 2018 with
television and print news outlets, see J.A. 182-83, 252-54, 256-

6

62, and attendance at a funeral in the District in September
2018, see J.A. 184, 335-36. Browder also hired a law firm in
the District 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 background, the circumstances surrounding
Magnitsky’s death, the passage of the Magnitsky Act, and
subsequent developments. See J.A. 17, 413-15. Akhmetshin’s
defamation complaint refers to Red Notice as a “best-seller.”
Compl. ¶ 68, Joint Appendix (“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 directors, 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 ¶¶ 3, 6, J.A. 372-73. Nonetheless, in 2015,
Browder made at least three appearances in the District at
events promoting Red Notice. See J.A. 153, 203, 204.
B. The Instant Case
Over the last five years, Browder and Akhmetshin have
found themselves increasingly 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
Magnitsky’s death, including accusations that Browder and
Magnitsky – not Russian government officials – perpetrated the
underlying tax fraud. See J.A. 12-13. Akhmetshin’s efforts on
this front have included lobbying for the removal of
Magnitsky’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

7

Act had been discussed. See J.A. 14, 35, 90, 108. Shortly after
the news broke, Browder posted two tweets identifying
Akhmetshin as a “Russian GRU officer,” 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 reporting on the June 9, 2016 meeting and containing
information on Akhmetshin’s background. See J.A. 88-93, 95-
105. An article published in Business Insider, also on 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[.]S[.] sanctions policy crucial to
Putin.” Decl. of Melissa Shube, Ex. C, J.A. 109. Four days
later, during a television appearance, Browder described
Akhmetshin as, “by all accounts, some kind of shady former
Soviet spy, current spy operator in Washington.” Compl. ¶ 51,
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
jurisdiction and Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. See J.A. 25. Regarding personal
jurisdiction, 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 related to lobbying and advocacy efforts and,
therefore, under the government contacts exception, these
contacts could not be considered in the calculus regarding
whether he was subject to personal jurisdiction in the District
of Columbia. See J.A. 50, 53-57.

8

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 satisfied all three plus factors in the District’s long-arm
statute. See J.A. 153-56. In the alternative, Akhmetshin
requested limited jurisdictional discovery to further establish
Browder’s contacts with the District. See J.A. 179.
On September 16, 2019, the District Court granted
Browder’s Motion to Dismiss for lack of personal jurisdiction,
denied Akhmetshin’s request for discovery, and dismissed the
case without prejudice. Akhmetshin, 407 F. Supp. 3d at 14. The
District Court applied the terms of the District’s long-arm
statute under D.C. Code § 13-423(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 corporate entities, not Browder. Id. at 21-22. The
District Court also found that “Akhmetshin’s allegations fail to
show that Mr. Browder conducted or solicited business in the
District” sufficient to satisfy the first factor under the long-arm
statute. Id. at 22.
The District Court then analyzed whether Browder’s
contacts with the District constituted a “persistent course of
conduct” – the second plus factor under the District’s long-arm
statute. Id. at 22-25; see D.C.
CODE § 13-423(a)(4). First, the
District Court rejected Akhmetshin’s argument that the
government contacts exception 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
governmental actors from its jurisdictional calculus. Id. at 24.

9

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. Id. at 24-25, 24 n.15. In so doing,
the court expressed its view that the government contacts
exception operated to exclude from the calculus all conduct
within the District 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)).
Next, the District Court addressed Akhmetshin’s claims
that Browder “ha[d] traveled to the District on several
occasions for certain engagements (i.e. dinner, reception,
meetings, private event, and funeral) 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 article, and . . .
stated in a telephone conversation 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 exercise of specific personal jurisdiction over a non-
resident 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 occasional[,] . . . the Court [would] not exercise personal
jurisdiction over Mr. Browder under D.C. Code § 13–
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

10

establish personal jurisdiction because ‘the government
contacts principle would exclude [them] from the personal
jurisdiction calculus.’” Id. at 28 (alteration in original) (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
[wa]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
rather than merely his complaint.
II. A
NALYSIS
A. Standard of Review
“A personal jurisdiction analysis requires 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.” 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 § 13-423. See Crane, 814 F.2d at 762.
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. Id. Denial of jurisdictional discovery is
reviewed for abuse of discretion. Id.

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B. The Government Contacts Exception
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 law in addressing this issue, we begin our
analysis by examining the scope of the government contacts
exception as enunciated by the District of Columbia Court of
Appeals (the “Court of Appeals”).
1. Development of the Government Contacts
Exception and Applicability to Nonresident
Aliens
In 1976, the Court of Appeals, sitting en banc, held that
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.
Env’t Rsch. Int’l, 355 A.2d at 813. The court explained that this
“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.” Id.
(emphasis added) (internal quotation marks omitted). The court
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.

12

The decision in Environmental Research 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 contacts exception “unsettled.” Companhia
Brasileira Carbureto de Calicio v. Applied Indus. Materials
Corp., 640 F.3d 369, 371 (D.C. Cir. 2011); see 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).
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 ‘government contacts’ principle.”
Lex Tex Ltd., Inc. v. Skillman, 579 A.2d 244, 249 (D.C. 1990).
If the government contacts exception applies only to
defendants who possess cognizable First Amendment interests,
its application to nonresident aliens such as Browder is
uncertain. 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”).

13

We have found no case, nor has Browder directed us to
one, in which the Court of Appeals has applied the government
contacts exception to the conduct of nonresident aliens.
Instead, Browder relies on two opinions from this court, issued
after Environmental Research International, in cases in which
a defendant was a nonresident alien. See Stabilisierungsfonds
fur Wein v. Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200
(D.C. Cir. 1981); Donahue v. Far E. Air Transp. Corp., 652
F.2d 1032 (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 Browder claims.
In Stabilisierungsfonds, we held that an Australian wine
producer and its distribution 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 footnote, we stated the following:
Counsel for [the plaintiffs] noted at oral argument that
[the Australian defendants] may have acted in the
District in connection with their registration of [a
trade]mark. The District of Columbia, however, has
grafted a “governmental contacts” exception to its
long-arm statute. That exception holds that the local
courts do not exercise personal jurisdiction 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.

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Id. at 205 n.11 (emphasis added) (internal citation omitted). It
is theoretically possible – 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
defendants. In our view, however, the sounder reading is that
the court took no position on the issue. The Court found that
personal jurisdiction existed without regard to the nonresident
aliens’ government contacts. Id. at 205-06. In other words, our
statement at the end of the footnote appears 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 series of consolidated
suits related to an airplane crash in Taipei, we held that a
Taiwanese 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.” Id. at
1038. We rejected that basis for jurisdiction, explaining that it
“ha[d] attracted only limited support in federal question cases”
and “ha[d] made no mark at all in cases” arising under state law
in federal courts. Id. at 1038- 39.
During the court’s discussion of the defendant’s contacts
with Guam, Hawai’i, New York, and the District, it was noted
that plaintiffs believed the airline’s interactions with the Civil
Aeronautics Board, located in the District, should have factored
into the jurisdictional calculus. See id. at 1038. In response, in
a footnote, the court observed that “[d]ealings with the federal
government, standing alone, do not provide a basis for District
of Columbia exercise of personal jurisdiction over a
nonresident.” Id. at 1038 n.9 (citing Env’t Rsch. Int’l, 355 A.2d
at 813). Browder, again, relies on this footnote as conclusive

15

evidence that we have applied the government contacts
exception to the conduct of a nonresident alien defendant.
As with Stabilisierungsfonds, we do not believe this
footnote carries the precedential weight that Browder urges.
Unlike in Stabilisierungsfonds, we found in Donahue that the
District Court lacked personal jurisdiction over the defendant.
See id. at 1039. But, as in Stabilisierungsfonds, that outcome
did not depend on the government contacts exception. Instead,
we believed jurisdiction did not exist in the District – or in
Guam, Hawai’i, or New York – because “aggregated contacts”
between different fora could not lead to general personal
jurisdiction over a defendant in any one of them. Id. at 1038-
39. Whether the airline’s contacts with the Civil Aeronautics
Board were excluded from the jurisdictional calculus was,
therefore, immaterial in determining whether general personal
jurisdiction over the airline existed 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 defendants. Nor
did we engage with the difficult question of whether the
government contacts exception covers such defendants. As a
result, these decisions establish no clear precedent regarding
whether the government contacts exception applies to a
nonresident alien.
Browder further notes that in several cases decided since
Environmental Research International, the District Court
appears to have assumed that the government contacts
exception applies to the contacts of nonresident aliens. See,
e.g., 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

16

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 would be
sufficient to establish personal jurisdiction under the District
long-arm statute. It is significant, albeit not dispositive, 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 nonresident aliens. And
Browder compellingly argues 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
Research International indicates only that the government
contacts exception applies to members of “the entire national
citizenry,” 355 A.2d at 813 (emphasis added), with no
reference to nonresident aliens.
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. But there are other grounds that might
dispose of this case without any need to determine whether the
government contacts exception applies to nonresident aliens. In
these circumstances, we believe that the wisest course for now
is to simply assume, without deciding, that the government
contacts exception applies to the contacts of nonresident aliens.
In other words, we will assume that Browder’s direct contacts

17

with members, agents, or instrumentalities of the federal
government, both before and after enactment of the Magnitsky
Act, may be excluded from the jurisdictional calculus. There is
nothing that compels a different approach at this stage of the
proceedings.
While we “recognize that we are leaving certain legal
questions . . . unresolved[,] . . . these issues may become moot"
depending on what happens in this case moving 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 jurisdictional discovery. Then, using
the proper legal standard for the application of the government
contacts exception, the District Court will recalculate
Browder’s contacts 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
Browder is subject to personal jurisdiction under 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
Although there may be a question as to whether the
government contacts exception extends to nonresident aliens,
the meaning and scope of the exception 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
nonresidents’ “sole contact with the District consists of dealing
with a federal instrumentality.” Env’t Rsch. Int'l, 355 A.2d at

18

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 added). Thus, under
the controlling District law, “entry into the District of
Columbia by nonresidents for the purpose of contacting
federal governmental agencies is” the key to the analysis. Id.
(emphasis added). Based on this controlling precedent, only
direct contacts with members, agents, or instrumentalities of
the federal government may be excluded from the jurisdictional
calculus. In our view, the scope of the government contacts
exception goes no further than this.
Browder has not identified any 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. Instead, Browder relies heavily on two
District Court cases for support. See Inv. Co. Inst. v. United
States, 550 F. Supp. 1213, 1216-17, 1217 n.6 (D.D.C. 1982);
United Therapeutics Corp. v. Vanderbilt Univ., 278 F. Supp.
3d 407, 417-19 (D.D.C. 2017). These decisions cannot carry
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 “registered with the [Securities and
Exchange Commission]” and headquartered in the District. Id.
at 1217 n.6. It is true, as Browder notes, that NASD was not
technically an instrumentality of the federal government.
However, “[s]ubmission to [NASD’s] regulation [wa]s [an]
alternative to direct regulation by the SEC.” Id. (citing 15
U.S.C. § 78o-3; First Jersey Sec., Inc. v. Bergen, 605 F.2d 690,

19

692-93 (3d Cir. 1979)). An application to a trade association
that Congress explicitly authorized to exercise regulatory
authority presents a significantly different question for
purposes of the government contacts exception than Browder’s
post-2012 contacts with the District, which have included
conduct such as interviews with media outlets and panel
discussions at NGOs.
The situation in United Therapeutics is less clear-cut. In
that case, Vanderbilt University’s District-based Office of
Federal Relations performed, among other things, lobbying and
general advocacy work before federal officials on behalf of the
university. See United Therapeutics, 278 F. Supp. 3d at 418. It
also “work[ed] closely with many higher education
associations and coalitions headquartered in [the District], . . .
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 conduct from the
jurisdictional calculus under the government contacts
exception, as it “concern[ed] federal public policy.” Id.
Browder argues that these activities were analogous to his
general advocacy efforts in the District after enactment of the
Magnitsky 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 Browder’s post-2012 activities in
the District. See Env’t Rsch. Int'l, 355 A.2d at 813.
In any event, even if Investment Company Institute and
United Therapeutics stretch the limits of the government
contacts exception, these decisions are not controlling

20

precedent. Our research indicates that there is no published
decision from the D.C. Court of Appeals or from this court
supporting Browder’s position that the government contacts
exception extends beyond what the court said in Environmental
Research International. See id.
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 interviews in both
print and audio-visual media – should be included in the
jurisdictional 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 2013 reception,
sitting for an interview published in December 2013,
attendance at a book release event in January 2014,
participation 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 funeral 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
jurisdictional calculus, as it did not consist of direct contact
with members, agents, or instrumentalities of the federal
government.
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 contacts with the District
that can be somehow construed as efforts to advance that

21

agenda. A defendant could make countless trips to the District
for purposes other than “contacting [the] federal government[]”
while having those trips excluded from the jurisdictional
calculus. See Env’t Rsch. Int’l, 355 A.2d at 813. 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 government
contacts exception.
C. Applying the District Long-Arm Statute and
Jurisdictional Discovery
Having determined the correct scope of the government
contacts exception, we turn to whether Browder’s nonexcluded
conduct within the District after 2012 satisfies 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 under the
statute depends on whether Browder’s conduct satisfies one of
the plus factors. See D.C.
CODE § 13-423(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 Browder’s promotional
events for the book in 2015 constituted, under the first plus
factor, regularly soliciting business within the District. See Br.
for Pl.-Appellant at 10-11. We disagree.

22

Preliminarily, there appears to be disagreement between
the parties as to whether Browder’s contacts related to Red
Notice should be categorically excluded 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 removed
from the jurisdictional analysis. Flocco v. State Farm Mut.
Auto. Ins. Co., 752 A.2d 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
consideration of Browder’s Red Notice-related contacts with
the District because Browder – 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).
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
statute, 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-Bradley v. Mobley, 964 F.3d 36, 47
(D.C. Cir. 2020) (emphasis added) (citations omitted). In this
case, by contrast, at issue is whether 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 employee’s acts in
his official capacity may never give rise to personal jurisdiction
over him.” Flocco, 752 A.2d at 163 n.20. And in this case,

23

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 organization’s governing body who “were also in part
acting in their individual capacities as . . . members” of that
body when undertaking conduct within the District). Thus,
Browder’s in-forum conduct related to Red Notice is not
categorically excluded from the jurisdictional calculus under
the fiduciary shield doctrine.
Nevertheless, even if such contacts are not subject to the
fiduciary shield doctrine, they do not suffice to confer personal
jurisdiction under the first or third plus factors. In McFarlane
v. Esquire Magazine, which involved a magazine article, 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.3d 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 ¶ 4, J.A. 372. That the
book is sold in the District does not, therefore, mean that
Browder himself is regularly doing business here.
Similarly, Browder does not directly receive 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 ¶ 6, J.A. 373. And the amount of revenue generated
by sales of Red Notice in the District – per 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. ¶ 68, J.A. 18; see also Br. for Pl.-Appellant at 6

24

(describing Red Notice as a “bestselling book”); Reply Br. for
Pl.-Appellant at 4 (same). Accordingly, based on the current
record, we cannot say that Browder derives substantial revenue
from sales of the book in the District.
Akhmetshin also notes – and Browder does not contest –
that, on at least three occasions in 2015, Browder appeared 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)
(emphasis 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.’” Parsons 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
insufficient to establish jurisdiction under section 13-
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
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

25

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, affiliations with the forum.” Id.
According to the Court of Appeals, two or three trips to the
District over the course of a decade likely would not constitute
a persistent course of conduct. See Parsons, 580 A.2d at 1330.
However, 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 Etchebarne-Bourdin v. Radice, 754
A.2d 322, 325 & n.5 (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 period
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 between these two bounds.
That record, however, is incomplete.
3. Jurisdictional Discovery
Trial courts generally have “broad discretion” in ordering
or denying discovery. See Jeffries v. Barr, 965 F.3d 843, 855
(D.C. Cir. 2020) (quoting In re Multi-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. Records), 381 F.3d 1205, 1211 (D.C.
Cir. 2004)). Thus, “the ‘abuse-of-discretion standard includes
review to determine that the discretion was not guided by
erroneous legal conclusions.’” Id. (quoting In re: Sealed Case
(Med. Records), 381 F.3d at 1211).

26

As discussed above, the District Court based its discovery
decision on an incorrect view of the applicable law. According
to the court, jurisdictional discovery was not warranted because
the government contacts exception would remove virtually all
of Browder’s personal appearances in the District from the
jurisdictional calculus. Akhmetshin, 407 F. Supp. 3d at 28. That
conclusion was premised on an overly broad view of the
government contacts exception. Even excluding his direct
contacts with the federal government and its instrumentalities,
Browder has had significant contacts with the District.
“[Akhmetshin] has pointed to links [Browder] has [had]
with the District sufficient 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 assist [Akhmetshin] on this score,
but [he] is entitled to pursue precisely focused discovery aimed
at addressing” whether Browder has engaged in a persistent
course of conduct within the District. See GTE New Media
Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1352 (D.C. Cir.
2000).

27

III. CONCLUSION
For the reasons set forth above, we vacate the judgment of
the District Court, reverse the court’s refusal to allow
jurisdictional discovery, and remand the matter to allow the
District Court to supplement the existing record. We are
ordering “jurisdictional discovery to permit development of the
record on [Browder’s] contacts with the District of Columbia.”
Urquhart-Bradley, 964 F.3d at 49. Following discovery, 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 determines that Browder is subject to
personal jurisdiction, the court may then consider 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. ___,
___, No. 19-1108, 2020 WL 6385692, at *2 (Nov. 2, 2020) (per
curiam) (internal quotation marks omitted). Such speculation,
the Court explained, “‘is particularly gratuitous when the state
courts stand willing to address questions of state law on
certification.’” Id. (quoting Arizonans for Official English v.
Arizona, 520 U.S. 43, 79 (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 genuinely uncertain’ and the question is of
‘extreme 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)), certified
question answered, 35 A.3d 1127 (D.C. 2012). In my view, the
questions here satisfy both requirements and should be certified
to the D.C. Court of Appeals.
I.
The government contacts exception traces its roots to a
series of D.C. Circuit decisions issued prior to enactment of the
District of Columbia Court Reform and Criminal Procedure
Act of 1970. In Mueller 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 relating to materials for
production” did not amount to “doing business” under the
relevant long-arm statute. 152 F.2d 142, 144 (D.C. Cir. 1945);
see also Fandel v. Arabian American Oil Co., 345 F.2d 87,
88–89 (D.C. Cir. 1965) (excluding the government-related
activities of a District of Columbia office from the
jurisdictional analysis because they did not constitute “doing

2

business” under the long-arm statute); Traher v. De Havilland
Aircraft of Canada, Ltd., 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 Government”). We likened this to our
decisions 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
corporations.’” Mueller Brass Co., 152 F.2d at 143 (quoting
Neely v. Philadelphia Inquirer Co., 62 F.2d 873, 875 (D.C. Cir.
1932)).
After the newly-created D.C. Court of Appeals assumed
responsibility for interpreting D.C. law, that court reaffirmed
the government contacts exception in Environmental Research
International, Inc. v. Lockwood Greene Engineers, Inc.,
355 A.2d 808, 813 (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 governmental 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 District 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

3

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 limited to those who seek to influence
federal legislation and policy through direct contacts with
government officials, such as by visiting them in their offices,
or whether it extends to those who likewise seek to influence
federal policy but through such tried and true methods as press
conferences, talk show appearances, or “book promotional
appearances, discussions and speeches at think tanks, and
interviews in both print and audio-visual media.” Majority Op.
at 20; 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 support, they emphasize certain words and phrases used by
the Court of Appeals—“sole,” “dealing with a federal
instrumentality,” “for the purpose of contacting federal
governmental agencies”—as well as that when the court
referred to “unfettered access,” it specified “to federal
departments and agencies.” Majority Op. at 17–18. “Based on
this controlling precedent,” the court concludes, “only direct
contacts with members, agents, or instrumentalities of the
federal government may be excluded from the jurisdictional
calculus.” Majority Op. at 18.
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 Environmental Research was whether direct
contacts, i.e., “consultation” with government officials, should
be excluded from the jurisdictional analysis. Efforts to

4

influence federal policy through media events were not
involved, and 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.
It is true, as the court points out, that “Browder has not
identified any 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.”
Majority Op. at 18. But there is a very good reason for that.
Post–Environmental Research, the D.C. Court of Appeals has
heard not a single case where the party invoking the
government contacts exception had, like Browder, traveled to
Washington in an effort to influence federal legislation through
media events. As in Environmental Research, every
subsequent 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 Ltd.,
Inc. v. Skillman, 579 A.2d 244, 245 (D.C. 1990); and
“petition[s] [to] the U.S. International Trade Commission,”
Companhia Brasileira Carbureto De Calcio v. Applied
Industrial Materials Corp., 35 A.3d 1127, 1132 (D.C. 2012).
The same is true of our post–Environmental Research cases.
None involved media events. They instead involved direct
contacts: “personal appearances” before the Department of the
Interior, 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. Ferrara, 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)

5

(unpublished table 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 establish precedential principles
that apply to materially similar factual scenarios arising in
future cases.” Spanski Enterprises, 883 F.3d at 911. But neither
Environmental 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 “controlling precedent”
resolves the question of whether the government contacts
exception extends to those who travel to Washington to
influence federal policy through media events. The issue,
moreover, satisfies both of our requirements for certification.
Because neither the D.C. Court of Appeals nor our court has
ever squarely addressed the question, and because neither court
has left a “‘discernible path for [us] to follow,’” Dial A Car,
Inc. v. Transportation, Inc., 132 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 exception is
genuinely uncertain,” Companhia Brasileira, 640 F.3d at 373.
And because those seeking to influence federal policy rely so
heavily on contacting federal officials through the media—
think MSNBC, Fox News, CNN, etcetera etcetera—the
question is of “sufficient public importance.” Id.
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.

6

2018), vacated and remanded on other grounds sub nom.
Opati v. Republic of Sudan, 140 S. Ct. 1601 (2020).
II.
I would also certify the second question in this case:
whether a foreign citizen like Browder can invoke the
government contacts exception. See Majority Op. at 16
(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 principles. But in a later
case, Rose v. Silver, a panel of that court “conclude[d] that the
First Amendment provides the only principled basis for
exempting a foreign defendant from suit in the District of
Columbia.” 394 A.2d at 1374. The full court subsequently
denied rehearing en banc. Rose v. Silver, 398 A.2d 787. As our
court observed in Naartex Consulting Corp. v. Watt, Rose
“appeared to limit the ‘government contacts’ exception to
activities implicating [F]irst [A]mendment rights.” 722 F.2d at
786; see also Companhia Brasileira, 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 exercise of
First Amendment rights.”).
Relying on Rose and citing our cases, Akhmetshin argues
that the government contacts exception does not apply to
Browder because he “has no First Amendment right to petition
the United States government 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,

7

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
decision, 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 irreconcilable tension exists
between the en banc opinion and a subsequent panel
opinion, and considering that a panel of the District of
Columbia Court of Appeals is prohibited from issuing
an opinion which conflicts materially with a prior
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 Environmental
Research no longer controls.
Fortunately, if there is any tension between
Environmental Research and Rose, we need not
resolve it . . . .
Naartex, 722 F.2d at 786–87 (alteration omitted) (internal
quotation marks omitted) (citations omitted). A later panel of
the D.C. Court of Appeals noted much the same. See
Companhia Brasileira, 35 A.3d at 1131 (“[S]ome of our
decisions may have implicitly narrowed the scope of the
government contacts doctrine by concluding that ‘the First

8

Amendment provides the only principled basis’ supporting it.”
(emphasis added) (quoting Rose, 394 A.2d at 1374)).
Although, as Browder points out, our court has previously
mentioned the government contacts exception in “reference” to
non-citizens, see Majority Op. at 13–15 (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 tension between
Environmental Research and Rose, District of Columbia law is
“genuinely uncertain” as to whether a foreign citizen may
invoke the government contacts 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
different question to the D.C. Court of Appeals 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 Textron, Inc., 999 F.2d 549, 564 (D.C.
Cir. 1993) (internal 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
division of this court will overrule a prior decision of this court
. . . [.] [S]uch result can only be accomplished by this court en
banc.” (footnote omitted)). Moreover, just as Browder has
spent years seeking passage and enforcement of the Magnitsky
Act, individuals and corporations throughout the world seek to
influence U.S. legislation and policy. See Companhia
Brasileira, 640 F.3d at 373 (concluding that the question to be
certified was “of sufficient public importance because its
resolution could affect numerous individuals and corporations
that petition the federal government”); Nationwide Mutual

9

Insurance Co. v. Richardson, 270 F.3d 948, 950 (D.C. Cir.
2001) (explaining that because the clause at issue “potentially
affect[ed] the insurance 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,
832 A.2d 752 (D.C. 2003), vacated pursuant to settlement,
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 (1990) (explaining that the Constitution’s use of the
phrase “the people” in the First Amendment “suggests 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 connection with this country to
be considered part of that community”); DKT Memorial Fund
Ltd. v. Agency for International Development, 887 F.2d 275,
285 (D.C. Cir. 1989) (expressing skepticism that foreign alien
organizations were “within the ‘zone of interests to be
protected or regulated by’” the First Amendment (quoting
Association of Data Processing Service Organizations v.
Camp, 397 U.S. 150, 153 (1970)).
III.
It goes without saying that the pandemic 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 government 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

10

this case could significantly affect one of this city’s major
businesses: lobbying.
Accordingly, I would certify the following two issues to
the D.C. Court of Appeals:
1. Does the government contacts exception 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.” Delahanty v.
Hinckley, 564 A.2d 758, 760 (D.C. 1989) (internal quotation
marks omitted).