D.C. Circuit Revives Case by Former Saudi Official with Ties to U.S. Intelligence

Photo of Saudi Arabian and U.S. Flags by Chief National Guard Bureau licensed under CC BY 2.0.

Dr. Saad Aljabri, a former Saudi official who lives in Canada, sued Crown Prince Mohammed bin Salman (“MBS”) and other defendants, alleging that they tracked him down and tried to kill him because of his relationship to the United States and to the former Crown Prince of Saudi Arabia.  As covered at TLB, federal district court judge Timothy Kelly dismissed the case, Aljabri v. bin Salman. The D.C. Circuit partially reversed in a short opinion that highlights an interesting facet of personal jurisdiction law and that makes a misstep in analyzing head of state immunity.

Personal Jurisdiction

Aljabri’s complaint alleges that MBS, some of his officials, a network of U.S. students, and an alleged mercenary group labeled the “Tiger Squad” tried to locate and kill him in Canada, the place where he eventually landed after fleeing Saudi Arabia. He fled because of his close relationship with the previous Crown Prince of Saudi Arabia – who was ousted by defendant MBS – and close his contacts with U.S. intelligence and counterterrorism officials. For these same reasons, he alleges, the defendants have sought to have him eliminated, including through elaborate efforts to lure him to return to Saudi Arabia and various global efforts to determine his physical location. The district court dismissed the claims – those brought against the Saudi defendants for lack of personal jurisdiction, those brought against the defendants in the U.S. for failure to state a claim.

The Saudi defendants have little connection to the United States, nor apparently was Aljabri himself actually in the United States when they sought to kill him, so how could U.S. federal courts even arguably have personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2)?  Aljabri at times falsely claimed to be in Boston where his son lives, the Saudi officials allegedly communicated with U.S. individuals in an attempt to locate and kill him, and the efforts against him purportedly targeted the United States itself because they were designed to diminish U.S. intelligence capabilities.  As to the claim that the United States as a country was targeted, the district court concluded that there were insufficient factual allegations to support this motive for the defendants’ conduct.

The other connections to the United States mostly involved the alleged orchestration by Saudi defendants of U.S. actors who claimed that they were trying to reach Aljabri to arrange a marriage.  Other contacts, such as a visit by one Saudi defendant to the United States, were unrelated to the lawsuit.  The claim of orchestration failed, the district court reasoned, both because the allegations were insufficient to impute the conduct of U.S. actors to the Saudi defendants on an agency theory, and because the exercise of personal jurisdiction would not be reasonable. The court denied jurisdictional discovery for the same reasons.

The district court’s reliance on “reasonableness” highlights the odd status of this prong of the personal jurisdiction test. Because the Supreme Court has in recent decades made it more difficult to satisfy the minimum contacts/purposeful availment side of the personal jurisdiction test, the reasonableness inquiry plays less of a role than it once did. Both prongs of the test must be satisfied. For cases in which there are many contacts and purposeful availment is clear, the exercise of jurisdiction is usually reasonable.  Cases in which the exercise of jurisdiction is not reasonable fail anyway for lack of purposeful contacts. Thus, there is much redundancy between the two prongs and courts rarely find jurisdiction unreasonable if the minimum contacts/purposeful availment test is satisfied.  The reasonableness test in personal jurisdiction also overlaps substantially with venue and forum non conveniens analyses, which are designed to find the most appropriate forum for litigation. All three tests focus in different ways on the burdens on the defendant, the interests of the forum, and the convenience of all parties and witnesses.

In this case, the district court denied jurisdictional discovery in part because even if discovery uncovered more contacts between the defendants and the United States, the exercise of jurisdiction would not be reasonable. The plot, the court wrote, “to kill Aljabri was allegedly hatched in Saudi Arabia as part of an internal dispute between members of the Saudi government, and it came close to being fully realized in Canada.”  Neither plaintiff nor the remaining defendants reside in the United States, the court reasoned, nor has the plaintiff shown that it is more convenient to litigate in the United States than in Canada.   The exercise of jurisdiction was accordingly not reasonable, even if additional contacts with the United States were uncovered.

The court of appeals reversed. Its reasoning undercuts any independent role that “reasonableness” played in the personal jurisdiction inquiry.  Evidence of an agreement between the Saudi officials and the U.S.-based parties could, the opinion explains, “both establish minimum contacts with the United States and affect the fairness of exercising personal jurisdiction over Saud Alqahtani and Alasaker.”  The lower court accordingly abused its discretion by denying discovery about the communications between the Saudi defendants and people in the United States.

Immunity

After the case was filed – and shortly before the district court issued its opinion –MBS was appointed the Prime Minister of Saudi Arabia. The district court dismissed the suit against him for lack of personal jurisdiction. The court of appeals affirmed but on different grounds: head of state immunity.

Saudi Arabia had requested a suggestion of immunity for MBS from the State Department for the Aljabri case, but there was no indication that the State Department had responded.  Nonetheless, the State Department had filed a suggestion of immunity for him in a different case, Cengiz v. bin Salman.  In Cengiz, the State Department had formally identified MBS as the Prime Minister of the Kingdom of Saudi Arabia and had suggested that he was entitled to head of state immunity as a result.  Because MBS is still the Prime Minister, the D.C. Circuit concluded, he was entitled to head of state immunity in Aljabri case as well.  This conclusion is certainly correct.

The court of appeals reasoned, however, that had the State Department suggested immunity, the court would “defer to its determination” and that the court would “lack jurisdiction over the defendant.” Although this statement was only dicta, it is incorrect to say that the courts should afford conclusive weight to an immunity determination by the executive branch for reasons I have detailed here and (with Bill Dodge) here.  Doing so would give the executive branch the power to make law binding on the courts – a power vested with Congress, not the President. Instead, courts should give conclusive weight to the State Department’s factual determination that a defendant holds the office of Prime Minister. And courts should make their own independent determination on the legal question of immunity vel non. This case illustrates that often the result will be the same. Head of state immunity before foreign domestic courts is well-established in international law and follows easily in this case from the determination that MBS is the Prime Minister of Saudi Arabia.

The courts’ own independent determination of immunity is governed by federal common law. To be sure, that common law should be informed by customary international law, including the State Department’s views on both the content of customary international and on how customary international law should be interpreted and developed. But that inquiry is somewhat different from what the court of appeals in Aljabri suggested that courts should do absent a suggestion of immunity.  If the executive branch has not weighed in, the court of appeals said, judges must “independently assess whether the defendant was entitled to immunity” – such review should rely “heavily” on the State Department’s policies and practices in other cases. That language might suggest that the law governing immunity is derived wholly from the State Department’s “policies and practices.” Instead, the courts should develop the law of immunity based on customary international law, including the State Department’s views as to the content and application of customary international law.  That is the correct legal analysis – whether or not the State Department makes an immunity determination.

Conclusion

The court of appeals correctly reversed on jurisdictional discovery – leaving one to wonder whether “reasonableness” should be jettisoned entirely from personal jurisdiction determinations.  It also correctly held MBS immune from suit, but it unnecessarily suggested that the executive branch has far greater law-making powers than the Constitution permits.