United States Court of Appeals, District of Columbia Circuit
Reuven Gilmore, individually, as the Administrator of the estate of Esh Kodesh Gilmore and as natural guardian of plaintiffs Eliana Gilmore and Dror Gilmore, et al., Appellants
Palestinian Interim Self-Government Authority, also known as Palestinian National Authority, also known as Palestinian Authority, et al., Appellees
September 14, 2016
from the United States District Court for the District of
Columbia (No. 1:01-cv-00853)
A. Yalowitz argued the cause for appellants. With him on the
briefs were Robert J. Tolchin and Meir Katz.
Mitchell R. Berger argued the cause for appellees The
Palestinian Authority and Palestine Liberation Organization.
With him on the brief were Pierre H. Bergeron, John A.
Burlingame, Alexandra E. Chopin, and Gassan A. Baloul.
Before: Griffith and Wilkins, Circuit Judges, and Silberman,
Senior Circuit Judge.
WILKINS, CIRCUIT JUDGE.
Kodesh Gilmore ("Gilmore"), a United States
national, was killed in a shooting attack in Jerusalem on
October 30, 2000. His family members and estate
(collectively, "Appellants") filed suit against the
Palestinian Interim Self-Government Authority
("PA") and the Palestine Liberation Organization
("PLO") (collectively, "Appellees")
asserting claims under the Anti-Terrorism Act, 18 U.S.C.
§ 2333, and related common law theories.
years of litigation, the District Court granted summary
judgment in favor of Appellees. Appellants challenge the
judgment, along with the vacatur of Appellees' defaults
and the denial of Appellants' motion to compel the
production of intelligence materials. Appellees challenge the
District Court's denial of a motion for judgment on the
pleadings for lack of personal jurisdiction. We have
jurisdiction to review the final decisions of the District
Court under 28 U.S.C. § 1291. For the reasons set forth
below, we affirm each of the District Court's challenged
was a private security guard at an East Jerusalem branch
office of the National Insurance Institute of Israel. On
October 30, 2000, he was shot and killed while on duty. The
State of Israel has not prosecuted or convicted anyone in
connection with the shooting.
filed suit against Appellees and individual defendants on
April 18, 2001. Appellees "failed to plead or otherwise
defend th[e] action, " so default was entered against
them on December 20, 2001. J.A. 85. A month and a half later,
Appellees moved to vacate the default. Appellees and
individual defendants also moved to dismiss, arguing (1) the
suit was a politically-motivated attack on the PA and
therefore non-justiciable, (2) "Palestine [was] a state
under U.S. and international law" and therefore
Appellees were entitled to sovereign immunity, and (3)
"[p]ersonal [j]urisdiction [was] [l]acking [o]ver the
[i]ndividual [d]efendants." J.A. 85.9-85.31. The
District Court vacated the default "in light of the
strong preference in this jurisdiction for rulings on the
merits." J.A. 86. For a variety of reasons, however, the
District Court did not rule on the motion to dismiss until
March 7, 2006, when it granted the motion as to the
individual defendants but denied the motion as to Appellees.
the ruling, Appellees failed to file a timely answer. The
District Court again entered default against Appellees on
January 29, 2007. Over the summer of 2007, the District Court
held damages hearings at which Gilmore's family
testified. On November 15, 2007, Appellees moved to vacate
the second default and filed an answer. In a declaration
submitted with the motion, the PA's Prime Minister, Salam
Fayyad, explained that he "became aware" of a
letter from U.S. Secretary of State Condoleezza Rice, which
encouraged Appellees to "respond to U.S. legal
proceedings in a good faith and a timely manner." Decl.
of Salam Fayyad ¶ 11, J.A. 130. Prime Minister Fayyad
assured the District Court that he "instructed new
counsel that [Appellees] will participate fully in this and
other litigation, in a cooperative manner, including complete
participation in the discovery process." Id.
¶ 13, J.A. 130. On December 28, 2009, the District Court
vacated the second default and, to mitigate prejudice to
Appellants, ordered Appellees to: (1) reimburse Appellants
for attorneys' fees and costs incurred as a result of the
default, (2) stipulate that Appellants "need not testify
again and that their testimony from the damages hearing may
be read into the trial record, " and (3) post a $1
million bond. J.A. 155-174.
years of discovery, Appellees submitted a privilege log to
Appellants on March 4, 2013. The log disclosed twenty-five
pages of material generated by the PA's intelligence
agency, the General Intelligence Services ("GIS"),
which were withheld under the state-secrets and
law-enforcement privileges. Appellants moved to compel the
production of those materials, arguing principally that
Appellees should produce the GIS materials, and alternatively
that the District Court should "conduct an in
camera review of the documents to determine whether any
privileges apply." J.A. 240-258. At a status conference,
Appellees argued that ex parte briefing would need
to accompany in camera review because it would be
"very difficult for [the District Court] to review the
documents and reach an assessment of them without additional
information that should not be disclosed publically or to
[Appellants]." Mot. Hr'g Tr. 14:19-24, J.A. 296. The
District Court subsequently ordered Appellees to file, sealed
and ex parte, the GIS materials and "an
explanatory Memorandum of those documents, not to exceed 10
pages." J.A. 282. On June 6, 2013, following in
camera review aided by Appellees' ex parte
briefing, the District Court denied Appellants' motion to
compel the production of the twenty-five pages of GIS
materials. The District Court also denied Appellants'
motion to unseal the memorandum submitted ex parte
subsequently moved for summary judgment, arguing that at the
close of fact discovery, Appellants had no admissible
evidence linking Gilmore's murder to any particular
person, let alone Appellees. Appellants argued that Gilmore
was killed by Muhanad Abu Halawa ("Halawa"), a
deceased former soldier in the PA's security apparatus
known as "Force 17, " and that Appellees were
vicariously liable for Halawa's actions. In support of
that theory, Appellants proffered the following evidence:
• Two statements published online by the Israel Ministry
of Foreign Affairs;
• A passage from a non-fiction book entitled The
Seventh War, which recounted a prison interview that
• A statement by one of Halawa's associates, which
was written and signed while in the custody of Israeli
• The testimony of Halawa's colleague during the
trial of Halawa's supervisor; and
• An expert report authored by a former intelligence
officer of the Israel Defense Forces.
District Court declared this evidence inadmissible, and
granted Appellees' motion for summary judgment.
urge this Court to "affirm the judgment below on the
alternative ground that the court below lacked personal
jurisdiction over [them]." Appellees' Br. at 52. We
address this argument first. See Sinochem Int'l Co.
v. Malay. Int'l Shipping Corp., 549 U.S. 422, 430-31
(2007) (citing Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 93-102 (1998)) ("[A]
federal court generally may not rule on the merits of a case
without first determining that it has jurisdiction over the
category of claim in suit (subject-matter jurisdiction) and
the parties (personal jurisdiction)."). We conclude that
Appellees have waived their challenges to personal
is . . . elementary that a defense of . . . lack of personal
(as opposed to subject matter) jurisdiction is waived unless
the defense is asserted by a pre-answer motion
(i.e., Rule 12(b)) or in a responsive pleading,
i.e., the answer or a timely amendment
thereto." Chatman-Bey v. Thornburgh, 864 F.2d
804, 813 (D.C. Cir. 1988) (en banc) (citing Fed.R.Civ.P.
12(h)(1), and 5C Charles A. Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 1388
(2d ed. 1969)).
their pre-answer motion, Appellees argued that
"Palestine [was] a state under U.S. and international
law" and, therefore, they were entitled to sovereign
immunity under the Foreign Sovereign Immunities Act
("FSIA"). J.A. 85.24. Appellees now raise a
constitutional personal-jurisdiction defense, which they
argue was preserved by their invocation of the FSIA. At oral
argument, Appellees insisted that "a sovereign immunity
challenge is a challenge to both personal jurisdiction and
subject matter jurisdiction, " and a "substantial
jurisdictional challenge" should not be deemed waived
just "because the motion said 'sovereign
immunity' and did not articulate the words 'personal
jurisdiction.'" Oral Arg. at 22:50-23:45.
argument is foreclosed by Foremost-McKesson, Inc. v.
Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir. 1990).
In Foremost-McKesson, Iran went a step further than
Appellees: it expressly argued that "[b]ecause under the
FSIA personal jurisdiction cannot exist unless there is
subject-matter jurisdiction, . . . the Court also lacks
personal jurisdiction, " id. at 453; in other
words, Iran did "articulate the words
'personal jurisdiction.'" This Court, however,
rejected Iran's argument because statutory and
constitutional grounds for personal jurisdiction are
different - a court must have both to hear a case.
Accordingly, we held that a "defense resting on personal
jurisdiction involv[ing] a statutory claim"
does not preserve "the separate constitutional ground
for a claim of lack of in personam
jurisdiction." Id. This reasoning applies with
equal force here: in their 2002 motion to dismiss,
Appellees' "only defense resting on personal
jurisdiction involved" the FSIA and, therefore, they
have waived "the separate constitutional ground for a
claim of lack of in personam jurisdiction."
also argue that their personal-jurisdiction defense was not
"available" to them until the Supreme Court's
decision in Daimler AG v. Bauman, 134 S.Ct. 746
(2014). "[A] party is only required to consolidate Rule
12 defenses and objections that are 'then available to
the party.'" 5C Charles A. Wright & Arthur R.
Miller, Federal Practice and Procedure § 1388 (3d ed.
2014) (quoting Fed.R.Civ.P. 12(g)). A defense is
"available" unless "its legal basis did not
exist at the time of the answer or pre-answer motion, or the
complaint does not contain facts sufficient to indicate that
a defense was possible." Chatman-Bey, 864 F.2d
at 813 n.9 (citations omitted). At the time of Appellees'
pre-answer motion in 2002, the "legal basis" for
their personal-jurisdiction defense did exist; there was no
Supreme Court or in-circuit precedent rendering the