District Court Dismisses Another Case Against MBS for Lack of Personal Jurisdiction

Two weeks ago, while King Salman was appointing Crown Prince Muhammad bin Salman (MBS) as Prime Minister of Saudi Arabia in an apparent bid to secure him head-of-state immunity in a suit brought by Jamal Khashoggi’s widow, the judge in a different case quietly dismissed another plaintiff’s claims against MBS for lack of personal jurisdiction. Judge Timothy Kelly, of the District Court for the District of Columbia, dismissed claims brought by Saad Aljabri, a close advisor to a former Crown Prince, that MBS sent a death squad to murder him in Canada. The decision shows, as Chimène Keitner and I have argued, that questions of foreign official immunity do not always have to be resolved first, particularly if there are simpler ways to dispose of the claims.

Background

As Judge Kelly noted, “[t]he allegations in this case are the stuff of a Tom Clancy novel.” Aljabri was a close advisor to former Saudi Crown Prince Mohammed bin Nayef (MBN), and the two of them allegedly worked closely with U.S. intelligence agencies on counterterrorism. Aljabri allegedly opposed MBS’s efforts to replace MBN as Crown Prince, including by lobbying U.S. officials. When Saudi Arabia began to arrest persons involved in the lobbying effort, Aljabri fled to Turkey and then to Canada.

Allegedly, MBS encouraged Aljabri to return to Saudi Arabia, but Aljabri explained falsely that he was seeking medical treatment in the United States. MBS allegedly barred two of Aljabri’s children from leaving the kingdom and used three Saudi students to help find Aljabri in the United States. Ultimately, MBS located Aljabri in Canada and allegedly sent a private death squad, known as the “Tiger Squad,” to kill him. But members of the Tiger Squad were denied entry by Canadian customs officials, foiling the plot.

Aljabri sued MBS, other Saudi officials, several U.S.-based individuals, and a Saudi foundation in U.S. court for attempted extrajudicial killing in violation of the Torture Victim Protection Act (TVPA) and customary international law under the Alien Tort Statute (ATS), as well as for intentional infliction of emotional distress. MBS moved to dismiss for lack of personal jurisdiction, foreign official immunity, failure to join Saudi Arabia as an indispensable party, the act of state doctrine, and failure to state a claim on which relief may be granted.

The district court dismissed the claims against most of the defendants for lack of personal jurisdiction. For the two defendants who did not raise objections to personal jurisdiction, the court held that Aljabri had failed to state a claim on which relief could be granted. I will focus just on the claims against MBS.

Lack of Personal Jurisdiction

Because Aljabir relied for personal jurisdiction on Federal Rule of Civil Procedure 4(k)(2), the district court considered MBS’s contacts with the entire United States, not just the District of Columbia. Aljabri argued that MBS purposefully targeted the United States because the plot to kill him was intended to disrupt his relationship with U.S. intelligence agencies. But the court held that the alleged facts did not support an inference of this motive, noting that the attempt on his life occurred more than three years after Aljabri stopped working for the Saudi government. Aljabri also argued that MBS organized a hunt to find him on U.S. soil. But the court held that the alleged facts did not plausibly establish that the persons asking questions in the United States about Aljabri’s whereabouts were acting as MBS’s agents.

Even if MBS had sufficient contacts with the United States to establish personal jurisdiction, the court held that exercising jurisdiction would be unreasonable under Asahi. The court found that defending against the claims in a foreign legal system—the United States—would be a substantial burden on MBS. It found that neither Aljabri nor the United States had a strong interest in a U.S. court asserting jurisdiction, since neither Aljabri nor MBS are U.S. citizens or residents. And it found that both Canada and Saudi Arabia had greater interests in the dispute than the United States.

What About Foreign Official Immunity?

As noted above, MBS argued in the motion to dismiss that he was entitled to foreign official immunity. He claimed both head-of-state immunity and conduct-based immunity for acts taken in his official capacity.

Before his appointment as Prime Minister, MBS was clearly not entitled to head-of-state immunity, which U.S. practice and customary international law have traditionally limited to sitting heads of state, heads of government, and foreign ministers. As I have noted, MBS’s appointment as Prime Minister of Saudi Arabia changes that and would clearly make him immune unless the United States refuses to recognize the appointment.

The conduct alleged in this case is, of course, different from the conduct alleged in the Khashoggi case. The motion to dismiss characterizes MBS’s alleged actions as having been taken in his official capacity to investigate corruption by Aljabri and to seek his extradition to face criminal charges in Saudi Arabia. It is hard, however, to see how the alleged conduct of sending a death squad to kill Aljabri in Canada can be characterized as an official act.

Nevertheless, the immunity questions raised in the motion to dismiss are more difficult than the personal jurisdiction questions on which the court disposed of the case. Can a district court dismiss for lack of personal jurisdiction without even considering immunity?

The short answer is yes. In the D.C. Circuit, foreign official immunity is treated as a question of subject matter jurisdiction (although Chimène and I have argued that it should instead be considered an affirmative defense). The Supreme Court has held that a court may dismiss for lack of personal jurisdiction without ruling on subject matter jurisdiction. Before passage of the Foreign Sovereign Immunities Act in 1976, the State Department refused to decide questions of sovereign immunity before the court had ruled on jurisdictional defenses. And although the State Department does not take such a hard-line position with respect to foreign official immunity today, it has stated that “a court need not address the immunity question until it has first reached determinations on other threshold issues, including whether a foreign official defendant has been properly served and whether the court has personal jurisdiction.”

Conclusion

Foreign official immunity is designed to spare certain foreign officials in certain circumstances from the burdens of litigation in U.S. courts. When simplest way to resolve a case is lack of personal jurisdiction, lack of subject matter jurisdiction, insufficient service, or even failure to state a claim on which relief can be granted, a court should address those questions before considering foreign official immunity. That is the course that Judge Kelly wisely chose in this case.