D.C. Circuit on Personal Jurisdiction in Foreign-Cubed Cases

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The D.C. Circuit (Judge Patricia Millet) recently grappled with the limits of federal personal jurisdiction in a suit between foreign parties regarding events that took place outside the United States. In Gligorov v. Nation of Brunei, the court affirmed the dismissal of RICO claims against three corporate defendants for lack of personal jurisdiction. The opinion joins the efforts of other federal courts to apply the Supreme Court’s decision in Fuld v. Palestine Liberation Organization (2025), which held that the personal jurisdiction analysis under the Fifth Amendment is “necessarily . . . more flexible” than that under the Fourteenth Amendment. What that distinction means in practice is immaterial when the defendant’s contacts with the United States would satisfy the Fourteenth Amendment test regardless. But Gligorov is one of those cases where the Fourteenth Amendment test would not be satisfied. What then?

Gligorov is a clearly written opinion that identifies key questions with which federal courts confronting this question must grapple, though it was ultimately able to avoid answering them due to concessions by the parties. Still, it provides a useful roadmap to understanding the practical implications of Fuld: the uncertain role of reasonableness, the potential distinctions between different provisions of Federal Rule of Civil Procedure 4(k), and the relationship between personal jurisdiction and the extraterritorial application of U.S. law.

Background

Goce Gligorov, a Slovenian national, was hired by Brunei to investigate government corruption. According to Gligorov, he uncovered evidence of corruption and terrorism financing by Bruneian officials, which involved funneling money through the London bank accounts of three corporations affiliated with the Brunei Investment Agency (none of which are incorporated or have their principal place of business in the United States). No transactions were alleged to have taken place in the United States. Gligorov alleges that once he shared these findings, the government refused to pay him and instead conspired with the three corporations to destroy his reputation, in particular by convincing INTERPOL to issue a “blue notice” against him. The only link to the United States is that, according to his complaint, “[a]t least one these clandestine meetings” plotting the conspiracy against him took place in a Beverly Hills hotel owned by one of the corporate defendants.

Gligorov sued Brunei, some officials of Brunei, and the three corporations in the D.C. District Court for violations of RICO (the Racketeer Influenced and Corrupt Organizations Act), as well as for common law contract and tort claims. He managed to serve only the three corporate defendants, who moved to dismiss on several grounds. The district court granted the motion to dismiss for lack of personal jurisdiction, which was clearly correct under the minimum contacts test presumed to apply before the Supreme Court’s decision in Fuld. Gligorov’s appeal was pending when Fuld was decided, requiring the circuit court to consider the personal jurisdiction question anew.

Open Questions

First, the D.C. Circuit correctly observed that Fuld “declined to prescribe a new test to take the place of the minimum-contacts inquiry.” This is the big question federal courts are facing after Fuld: is there a reasonableness or some other meaningful nexus requirement for the exercise of Fifth Amendment personal jurisdiction? Gligorov was able to avoid resolving that question, however, because Gligorov conceded that the Fifth Amendment still requires the assertion of personal jurisdiction to be reasonable.

It is an interesting concession for a plaintiff to make (though I think it is doctrinally correct, as I have argued elsewhere), but I was also intrigued by Gligorov’s definition of reasonableness as turning on “federal sovereignty, congressional authorization, and basic fairness.” The D.C. Circuit (like other courts) assumed that reasonableness would be evaluated via a truncated Fourteenth Amendment test: the strength of the plaintiff’s interests and the forum’s interests versus the burden on the defendant. Gligorov’s alternative definition may well be a better fit for the Fifth Amendment and Fuld’s reasoning.

Second, the D.C. Circuit raised the possibility that Fuld might apply differently depending on which provision of Rule 4(k) the plaintiff relies on. Although RICO has a service of process provision, Gligorov failed to satisfy it, which means he cannot rely on Rule 4(k)(1)(C)—the rule under which Fuld was decided. Instead, personal jurisdiction over the three corporate defendants depended on Rule 4(k)(2), which authorizes personal jurisdiction for claims arising under federal law up to the limits of the “United States Constitution and laws.”

On the one hand, the court noted that Fuld spoke about “declin[ing] to import the Fourteenth Amendment minimum contacts standard into the Fifth Amendment,” a broad statement that would seem to apply to all federal assertions on personal jurisdiction, including Rule 4(k)(2). On the other hand, the fact that personal jurisdiction would flow “from a court-made rule rather than a statute” makes Rule 4(k)(2) “an odd fit for the Supreme Court’s analysis in Fuld.” But the D.C. Circuit concluded that it did not need to “tread new ground” in resolving that question since the parties apparently didn’t raise the distinction.

Nonetheless, I think the D.C. Circuit suggested this is more of an open question than it really is. For example, it quoted Fuld as stating that “[a]ny difference between the Fifth and Fourteenth Amendments is … implicated in only a subset of federal cases, such as those in which personal jurisdiction is … ‘authorized by a federal statute’”—a reference to Rule 4(k)(1)(C). The D.C. Circuit’s use of emphasis suggests it understood “only a subset” to refer to a subset of cases dependent on the Fifth Amendment’s scope. But the prior sentence in Fuld had explained that the federal courts typically rely on Rule 4(k)(1)(A), which mirrors the scope of state court personal jurisdiction, which in turn is limited by the Fourteenth Amendment. When Fuld then said the Fifth Amendment is “implicated in only a subset of federal cases,” it was distinguishing Rule 4(k)(1)(A) cases from the rest of Rule 4(k)—and its reference to Rule 4(k)(1)(C) as just one example (“such as those in which personal jurisdiction is * * * ‘authorized by a federal statute’”) means that the Supreme Court must also have had in mind either Rule 4(k)(1)(B) (the so-called “bulge provision”) or Rule 4(k)(2), or more likely both. That passage, in other words, strongly indicates that Fuld assumed the distinction it was drawing would apply equally to Rule 4(k)(2).

An Implied Question

There was one other question raised by Gligorov that the D.C. Circuit did not explicitly flag, but that I believe is of growing importance: the relationship between Fifth Amendment personal jurisdiction and the limits on the reach of U.S. law as a matter of prescriptive jurisdiction.

While reading this opinion, I kept asking myself, “But how does Gligorov’s RICO claim survive European Community v. RJR Nabisco (2016)?” In RJR Nabisco, the Supreme Court held that RICO’s private right of action does not rebut the presumption against extraterritoriality. Instead, the plaintiff must allege a domestic injury to his business or property. The defendants argued before the district court that Gligorov failed to do so. The district court did not address this argument (or others regarding the sufficiency of Gligorov’s claim) because at the time of its decision, there was a clear lack of personal jurisdiction.

This case is thus a good example of how courts might be able to avoid some of Fuld’s hard questions by relying on the presumption against extraterritoriality instead. To explain, Fuld’s hard questions will only arise in cases involving foreign defendants (not subject to general personal jurisdiction in the United States) whose disputed conduct took place outside the United States (and thus would not satisfy the Fourteenth Amendment’s minimum contacts test, as assessed on a national scale). The presumption against extraterritoriality (for better or for worse) limits most federal statutes to domestic conduct related to the focus of the statute—it is, in other words, a backdoor requirement for minimum contacts related to the dispute.

(Admittedly, the courts are divided on whether such a merits determination can precede resolution of a personal jurisdiction defense. The better answer, as my colleague Kevin Clermont has explained, is that it may: personal jurisdiction is a personal right that is waivable, not one that goes to the structural competence of the court; the defendant receives not only the dismissal it desires, but also a judgment with claim preclusive effect; and yet the defendant is not bound by the (lack of) personal jurisdiction finding and can relitigate that issue later if it so desires.)

I suspect Gligorov would be an easy case analyzed from the perspective of RJR Nabisco: once the RICO claims were dismissed for failing to state a claim, there would be no supplemental jurisdiction over the remaining state law claims as there is no diversity jurisdiction over cases without any U.S. party.

But that only works for statutes that do not rebut the presumption against extraterritoriality. What about those statutes that do? The Roberts Court hasn’t addressed what the outer limits of U.S. prescriptive jurisdiction are in that scenario, just as it has declined to address the outer limits of federal personal jurisdiction. As I flagged last week, federal courts have been pondering the potential overlap between this question and the personal jurisdiction questions left open by Fuld. Both, the lower courts suspect, still require some degree of nexus or connection to the United States. I agree with that intuition, but I worry about the lack of clear guidance on both fronts.