United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2016 Decided December 13, 2016

No. 14-7129

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

v.

PALESTINIAN INTERIM SELF-GOVERNMENT AUTHORITY, ALSO 

KNOWN AS PALESTINIAN NATIONAL AUTHORITY, ALSO KNOWN 

AS PALESTINIAN AUTHORITY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:01-cv-00853)

Kent 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.
2

Before: GRIFFITH and WILKINS, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.

WILKINS, Circuit Judge: Esh 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 AntiTerrorism Act, 18 U.S.C. § 2333, and related common law 

theories. 

After 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 orders.

I.

Gilmore 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. 

Appellants filed suit against Appellees and individual 

defendants on April 18, 2001. Appellees “failed to plead or 
3

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. 

After 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’ 
4

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. 

Following 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 lawenforcement 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 by Appellees. 

Appellees 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
5

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 

implicated Halawa;

 A statement by one of Halawa’s associates, which was 

written and signed while in the custody of Israeli 

police;

 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. 

The District Court declared this evidence inadmissible, 

and granted Appellees’ motion for summary judgment. 

II.

Appellees 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 jurisdiction.
6

“It 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)).

In 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. 

This 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 
7

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.” Id.

Appellees 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 preanswer motion, or the complaint does not contain facts 

sufficient to indicate that a defense was possible.” ChatmanBey, 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 personaljurisdiction defense “for all practical purposes impossible for 

the defendants to interpose.” Id. In other words, the defense 

was “available” at the time.

An examination of the Second Circuit’s recent decision 

in Waldman v. Palestine Liberation Organization, 835 F.3d 

317 (2d Cir. 2016) illustrates the point. Second Circuit

precedent “permitted general jurisdiction on the basis that a 

foreign corporation was doing business through a location 

branch office in the forum.” Gucci Am., Inc. v. Weixing Li, 

768 F.3d 122, 135 (2d Cir. 2014) (citations omitted). The PA 
8

and PLO were arguably “doing business through a location 

branch office.” See Klinghoffer v. S.N.C. Achille Lauro Ed 

Altri-Gestione Motonave Achille Lauro in Amministrazione 

Straordinaria, 937 F.2d 44, 51-52 (2d Cir. 1991) (noting that 

the PLO owned a building in Manhattan that it used as an 

office). Consequently, in the Second Circuit, the “legal basis” 

for the PA and PLO’s personal-jurisdiction defense arguably 

“did not exist at the time” while this precedent was 

controlling. See Chatman-Bey, 864 F.2d at 813 n.9. In 

Daimler, the Supreme Court “expressly cast doubt on” that

Second Circuit precedent. Gucci, 768 F.3d at 135. 

Accordingly, the Second Circuit held that the PA and PLO 

“did not waive or forfeit their objection to personal 

jurisdiction” because the objection was not “available” before

Daimler. Waldman, 835 F.3d at 328. 

No similar precedent existed in this Circuit and, 

therefore, the “legal basis” for Appellees’ personaljurisdiction defense did exist at the time; the defense was 

“available.” See Chatman-Bey, 864 F.2d at 813 n.9. 

Therefore, Appellees waived their personal-jurisdiction 

defense by failing to assert it in their pre-answer motion.

III.

We next turn to the District Court’s vacatur of two 

defaults, which we review “for abuse of discretion, keeping in 

mind the federal policy favoring trial over default judgment.” 

Whelan v. Abell, 48 F.3d 1247, 1258 (D.C. Cir. 1995). 

Appellants argue that Appellees were “essentially 

unresponsive” prior to the entry of two defaults, and that 

“should have been the end of the [District Court’s] inquiry.”

Appellants’ Br. at 31-32. The Federal Rules of Civil 

Procedure delineate the standards governing the entry and 

vacatur of defaults and default judgments. See FED. R. CIV. P.
9

55(a) (entering defaults), 55(b) (entering default judgments), 

55(c) (vacating defaults), 60(b) (vacating default judgments). 

In H.F. Livermore Corp. v. Aktiengesellschaft Gebruder 

Loepfe, 432 F.2d 689 (D.C. Cir. 1970), this Court articulated 

the policy reasons for allowing default judgments: “when the 

adversary process has been halted because of an essentially 

unresponsive party . . . ., the diligent party must be protected 

lest he be faced with interminable delay and continued 

uncertainty as to his rights.” Id. at 691; see 10A CHARLES A.

WRIGHT, ARTHUR R. MILLER & MARY K. KANE, FEDERAL 

PRACTICE AND PROCEDURE § 2681 (3d ed. 2016) (discussing 

H.F. Livermore as an “apt expression” of the “policy reasons 

for allowing default judgments”). However, the rationale for 

entering default judgments does not govern the analysis for 

vacating defaults; this Court has never held that when a 

defendant has been “essentially unresponsive,” courts are 

forbidden from vacating defaults.1 

Rather, district courts may vacate “an entry of default for 

good cause.” FED. R. CIV. P. 55(c). The “good cause” 

standard “frees a court . . . from the restraints of Rule 60(b)

[conditions for vacating default judgments] and entrusts the 

determination to the discretion of the court.” 10A CHARLES 

A. WRIGHT, ARTHUR R. MILLER & MARY K. KANE FEDERAL 

PRACTICE AND PROCEDURE § 2694 (3d ed. 2016). “[E]xercise 

of that discretion entails consideration of whether (1) the 

default was willful, (2) a set-aside would prejudice plaintiff, 

and (3) the alleged defense was meritorious . . . .” Keegel v. 

Key W. & Caribbean Trading, 627 F.2d 372, 373 (D.C. Cir. 

1980) (citations omitted). 

 

1

Indeed, even default judgments may be vacated when the 

defaulting party was, for some period of time, “essentially 

unresponsive.” See FED. R. CIV. P. 60(b) (listing several conditions 

unrelated to responsiveness or willfulness). 
10

Following the Keegel framework, the District Court first 

found that Appellees’ defaults were willful. Second, it found 

that vacatur would cause prejudice to Appellants, but 

mitigated the prejudice by requiring Appellees to: (a) 

reimburse Appellants for attorneys’ fees and costs incurred as 

a result of the default, (b) stipulate that Appellants “need not 

testify again and that their testimony from the damages 

hearing may be read into the trial record,” and (c) post a 

$1 million bond. J.A. 155-174. Third, the District Court 

found that Appellees raised “meritorious” defenses. For the 

purposes of vacating defaults, “[d]efendants’ allegations are 

meritorious if they contain even a hint of a suggestion which, 

proven at trial, would constitute a complete defense.” Keegel, 

627 F.2d at 375 (internal quotation marks and citations 

omitted). Appellees satisfied this modest requirement. Even 

when a default is willful, a district court does not necessarily 

abuse its discretion by vacating a default when the asserted 

defense is meritorious and the district court took steps to 

mitigate any prejudice to the non-defaulting party. See, e.g., 

Whelan, 48 F.3d at 1258-59 (affirming the vacatur of a default 

as to most claims, despite “the record suggest[ing] intentional 

delay”). 

Appellants argue that the District Court abused its 

discretion by considering factors other than those articulated 

in Keegel. Rule 55(c)’s “good cause” determination is a 

balance of the equities, Whelan, 48 F.3d at 1259-60, that is 

guided principally – but not exclusively – by the Keegel 

factors. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 

(2d Cir. 1993) (observing that in addition to the Keegel 

factors, “[o]ther relevant equitable factors may also be 

considered”). The “good cause” standard is designed to 

empower courts to consider the equities that specially arise in 

a given case. See 10A CHARLES A. WRIGHT, ARTHUR R.

MILLER & MARY K. KANE FEDERAL PRACTICE AND 
11

PROCEDURE § 2696 (3d ed. 2016) (“Rule 55(c) is addressed to 

the trial court’s discretion, which is exercised in light of all 

the circumstances of the individual situation . . . .”). 

Accordingly, the District Court properly credited the equitable 

considerations raised by the foreign defendants in this case, 

and did not abuse its discretion merely because those 

considerations fell outside the Keegel framework. The 

District Court ultimately determined that upon consideration 

of all the factors – those articulated in Keegel and not – this 

matter was best resolved on the merits, which is hardly a 

remarkable conclusion. See Keegel, 627 F.2d at 375 

(“[C]ourts . . . universally favor trials on the merits.” (internal 

quotation marks and citations omitted)).

In light of the “federal policy favoring trial over default 

judgment,” Whelan, 48 F.3d at 1258, we conclude the District 

Court did not abuse its discretion in finding “good cause” to 

vacate Appellees’ defaults.

IV.

We turn to consider the District Court’s denial of 

Appellants’ motion to compel the production of purportedly 

privileged materials, based on in camera review with the 

assistance of ex parte briefing. 

Following years of discovery, Appellees submitted an 

untimely privilege log to Appellants. The log disclosed the 

existence of twenty-five pages of materials generated by the 

PA’s intelligence agency, but withheld those materials as 

privileged. At Appellants’ suggestion, the District Court 

reviewed the intelligence materials in camera. In response, 

Appellees explained to the District Court that it would be 

“very difficult . . . to review the [intelligence materials] and 

reach an assessment of them without additional information 

that should not be disclosed publically or to [Appellants].” 
12

Mot. Hr’g Tr. 14:19-24, J.A. 296. Consequently, the District 

Court ordered Appellees to submit ex parte “an explanatory 

Memorandum of those documents, not to exceed 10 pages.” 

After reviewing the twenty-five pages of intelligence 

materials in camera with the assistance of the ex parte 

memorandum, the District Court concluded that the 

documents offered no relevant information that was not 

already in Appellants’ possession. 

A.

Appellants argue that by deciding the motion based on in 

camera review with the assistance of the ten-page ex parte 

memorandum, the District Court violated Appellants’ Fifth

Amendment due process rights.

The Supreme Court “has approved the practice of 

requiring parties who seek to avoid disclosures of documents 

to make the documents available for in camera inspection, 

and the practice is well established in the federal courts.” 

United States v. Zolin, 491 U.S. 554, 569 (1989) (citations 

omitted). 

However, ex parte proceedings should be employed to 

resolve discovery disputes only in extraordinary 

circumstances. Cf. Abourezk v. Reagan, 785 F.2d 1043, 1061 

(D.C. Cir. 1986) (Ginsburg, R.B., J.) (“Only in the most 

extraordinary circumstances does our precedent countenance 

court reliance upon ex parte evidence to decide the merits of a 

dispute.”). “The openness of judicial proceedings serves to 

preserve both the appearance and the reality of fairness in the 

adjudications of United States courts.” Id. at 1060-61. 

Nevertheless, “communications between a judge and one 

party are not per se deprivations of the due process rights of 

the opposing party . . . .” Clifford v. United States, 136 F.3d 

144, 149 (D.C. Cir. 1998) (citation omitted). 
13

In Clifford, this Court catalogued some of the 

circumstances in which ex parte submissions have been 

permitted:

Ex parte submissions are permissible to 

determine whether documents sought by a 

party enjoy a privilege against discovery, see In 

re Application of Eisenberg, 654 F.2d 1107, 

1112 (5th Cir. Unit B 1981); cf. Kerr v. United 

States Dist. Court, 426 U.S. 394, 405 (1976), 

‘to prevent frustration of a statutory purpose to 

limit access to Government papers,’ In re 

Taylor, 567 F.2d 1183, 1188 (2d Cir. 1977), or 

‘to resolve fears of intimidation of a witness,’ 

In re Paradyne Corp., 803 F.2d [604][,] 612 

[(11th Cir. 1986)].

136 F.3d at 149; see also Abourezk, 785 F.2d at 1060-61 

(listing similar exceptions).

These “extraordinary circumstances” share a common 

feature: the need for secrecy in light of the substantial adverse 

consequences of disclosure. Here, Appellants sought 

intelligence materials generated in the midst of a geopolitical 

conflict. The District Court was tasked with evaluating the 

discoverability of those materials, which would have been 

challenging without proper context. In light of the sensitive 

nature of the disputed materials and the foreign policy 

implications of disclosure, this case presents one of the 

“extraordinary circumstances” in which it was not improper 

for the District Court to consider a ten-page ex parte

explanatory memorandum. See Abourezk, 785 F.2d at 1060-

61.
14

B.

Appellants also challenge the substance of the District 

Court’s decision to deny their motion to compel. “We review 

district court rulings on discovery matters solely for abuse of 

discretion, reversing only if the party challenging the decision 

can show it was clearly unreasonable, arbitrary, or fanciful.” 

Bowie v. Maddox, 642 F.3d 1122, 1136 (D.C. Cir. 2011) 

(internal quotation marks and citations omitted).

Appellants first argue that Appellees waived any 

privileges and, in the alternative, that no privilege protects the 

intelligence materials in dispute. We need not address 

whether Appellees properly invoked any privileges over the 

intelligence materials because the District Court acted within 

its discretion under Federal Rule of Civil Procedure 26(b). 

Under Rule 26(b), the scope of discovery is defined, in part, 

by “whether the burden or expense of the proposed discovery 

outweighs its likely benefit.” FED. R. CIV. P. 26(b)(1). 

Indeed, “[o]n motion or on its own, [a] [district] court must 

limit the frequency or extent of discovery otherwise allowed . 

. . if it determines that . . . the discovery sought is 

unreasonably cumulative or duplicative . . . .” FED. R. CIV.

P. 26(b)(2)(C). “Rule 26 vests the trial judge with broad 

discretion to tailor discovery narrowly . . . .” Crawford-El v. 

Britton, 523 U.S. 574, 598 (1998). 

The District Court examined the twenty-five pages of 

intelligence materials and concluded, as to the “likely benefit” 

of the proposed discovery, that the “documents had no great 

significance” to Appellants’ claims. Then, it concluded that 

the proposed discovery would “undermine important 

interests” of Appellees, quoting Societe Nationale Industrielle 

Aerospatiale v. U.S. District Court for the Southern District of 

Iowa, 483 U.S. 522 (1987). Appellants argue that the District 
15

Court erred because Societe Nationale applies only to 

sovereign states and that the Palestinian Authority is not one. 

But, that is beside the point; imposition on the “important 

interests” of Appellees is properly weighed as a “burden” 

under Rule 26(b), without regard to whether any party is a 

sovereign. See In re Sealed Case (Medical Records), 381 

F.3d 1205, 1215-18 (D.C. Cir. 2004) (reversing an order 

granting a motion to compel because the district court failed 

to weigh privacy interests as a “burden” under Rule 26). The 

District Court, determining that the “burden” of discovery 

outweighed the “likely benefit” and discharging its duty to 

limit “unreasonably cumulative” discovery, exercised its 

“broad discretion [under Rule 26] to tailor discovery narrowly 

. . . .” See Crawford-El, 523 U.S. at 598. 

Having reviewed the twenty-five pages of foreign 

intelligence materials, we conclude the District Court’s 

decision was not “clearly unreasonable, arbitrary, or fanciful,” 

and therefore not an abuse of discretion. See Bowie, 642 F.3d 

at 1136.

V.

Finally, we turn to the District Court’s grant of summary 

judgment in Appellees’ favor, which was entirely predicated 

on rulings that deemed Appellants’ evidence inadmissible 

hearsay. 

“Summary judgment is appropriate only if ‘there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.’” Johnson v. Perez, 

823 F.3d 701, 705 (D.C. Cir. 2016) (quoting FED. R. CIV. P.

56(a)).

“[W]e review a trial court’s evidentiary rulings for abuse 

of discretion and even if we find error, we will not reverse an 
16

otherwise valid judgment unless appellant[s] demonstrate[] 

that such error affected [their] substantial rights.” Bowie, 642 

F.3d at 1134 (citation omitted). The District Court ruled that 

Appellants’ evidence was inadmissible hearsay and “sheer 

hearsay . . . counts for nothing on summary judgment.” Greer 

v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (internal 

quotation marks and citations omitted). “While a nonmovant 

is not required to produce evidence in a form that would be 

admissible at trial, the evidence still must be capable of being 

converted into admissible evidence.” Gleklen v. Democratic 

Cong. Campaign Comm., Inc., 199 F.3d 1365, 1369 (D.C. 

Cir. 2000) (emphasis in original).

“[E]xcept in the extraordinary situation of plain error, no 

error can be claimed if at the time of the judge’s ruling the 

counsel had made no offer of proof that would have fulfilled 

the condition[s] [of admissibility].” United States v. Burnett, 

890 F.2d 1233, 1240 (D.C. Cir. 1989) (citing FED. R. EVID.

103(a)(2), (d)); see also 5 JOSEPH M. MCLAUGHLIN, JACK B.

WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S FEDERAL 

EVIDENCE § 103.20[5] (2d ed. 2013) (“In making an offer of 

proof, counsel must be careful to articulate every ground on 

which the evidence is admissible, since a ground not 

identified at trial will not provide a basis for reversal on 

appeal.”). The requirements to articulate grounds for 

admissibility and to support those grounds with an offer of 

proof are especially pertinent where, as here, the proponent 

made little effort to assist the District Court in making the 

evidentiary rulings. 

A.

The District Court excluded two web pages from the 

Israel Ministry of Foreign Affairs website, which Appellants 

characterized as “Israeli government reports identifying Force 
17

17 and Abu Halawa as having executed the murder [of 

Gilmore], [which] are admissible under [Federal Rule of 

Evidence] 803(8)[].” J.A. 733. 

“A record or statement of a public office” is admissible if 

“it sets out . . . factual findings from a legally authorized 

investigation[] and . . . the opponent does not show that the 

source of information or other circumstances indicate a lack 

of trustworthiness.” FED. R. EVID. 803(8). “Rule 803(8)[] is 

to be applied in a commonsense manner, subject to the district 

court’s sound exercise of discretion . . . .” In re Korean Air 

Lines Disaster, 932 F.2d 1475, 1481 (D.C. Cir. 1991) 

(quotation marks and citation omitted).

At the top of each web page was the banner for the Israel 

Ministry of Foreign Affairs and the author of each page was

identified only as “IDF [Israel Defense Forces] Spokesman.” 

The first page offered background on Force 17, including an 

assertion that it was responsible for “[a] shooting attack in 

Jerusalem, in which a security guard was killed and another 

wounded (30 October).” J.A. 728. The second page 

announced the targeted killing of Halawa, who purportedly 

“took part in” Gilmore’s murder. J.A. 729. The pages offer 

no information explaining who made the findings or how they 

were made. 

Before the District Court, Appellants rested on a bare, 

one-sentence assertion that the web pages were admissible

under Rule 803(8), but offered no further explication of how

the pages conveyed “factual findings from a legally 

authorized investigation,” FED. R. EVID. 803(8). Without 

more, the District Court did not abuse its discretion by ruling 
18

that the two pages were not admissible under Rule 803(8). 

See In re Korean Air Lines Disaster, 932 F.2d at 1481.2

B.

The District Court excluded excerpts from a non-fiction 

book entitled The Seventh War, authored by an Israeli 

journalist, Avi Issacharoff (“Issacharoff”), who conducted an 

interview with a Palestinian prisoner, Karim Aweis 

(“Aweis”). The book excerpt offered the following account: 

“Halawa told Aweis that he wanted to announce to the media 

that he assumed responsibility for the East Jerusalem attack 

[killing Gilmore] on behalf of a new military wing of Fatah.” 

J.A. 727. 

This is triple hearsay: (1) Halawa’s statement to Aweis, 

(2) Aweis’s statement to Issacharoff, and (3) Issacharoff’s 

written account. In order to be admissible, “each part of the 

combined statements [must] conform[] with an exception to 

the rule [against hearsay].” FED. R. EVID. 805. The District 

Court ruled that Halawa and Aweis’s statements were 

inadmissible. 

Appellants argue that Aweis’s statement was a party 

admission because Aweis was purportedly an “employee” of 

the PA. A statement is not hearsay if “[t]he statement is 

offered against an opposing party and . . . was made by the 

 

2 Appellants now point to other record materials that may have 

supported admission under Rule 803(8). However, Appellants did 

not make this offer of proof to the District Court and, therefore,

failed to preserve a claim of error on the basis of those materials. 

See Burnett, 890 F.2d at 1240 (“[E]xcept in the extraordinary 

situation of plain error, no error can be claimed if at the time of the 

judge’s ruling the counsel had made no offer of proof that would 

have fulfilled the condition[s] [of admissibility].”). 
19

party’s agent or employee on a matter within the scope of that 

relationship and while it existed.” FED. R. EVID.

801(d)(2)(D). At the time of his statement, Aweis was 

serving six life sentences in prison, but was receiving 

payments from the PA’s Ministry of Prisoners and was 

purportedly continuing to receive military promotions. 

“Ordinarily, an agency relationship arises only where the 

principal has the right to control the conduct of the agent with 

respect to matters entrusted to the agent . . . .” Atrium of 

Princeton, LLC v. NLRB, 684 F.3d 1310, 1315 (D.C. Cir. 

2012) (internal quotation marks, alterations, and citations 

omitted); see also RESTATEMENT (THIRD) OF AGENCY § 1.01 

cmt. c (AM. LAW INST. 2006) (“The common law of 

agency . . . encompasses the employment relation . . . .”). 

Appellants did not offer any evidence that, at the time of 

Aweis’s statement, Appellees still “ha[d] the right to control 

[his] . . . conduct.” Therefore, the District Court did not abuse 

its discretion by concluding that Aweis’s statement was not a 

party admission.

Since it was not an abuse of discretion to exclude 

Aweis’s statement, it was also not an abuse of discretion to 

exclude the passage from The Seventh War, which recounted 

Aweis’s statement. See FED. R. EVID. 805 (“[E]ach part of the 

combined statements [must] conform[] with an exception to 

the rule [against hearsay].”).

C.

The District Court excluded the statement made by 

Mustafa Maslamani (“Maslamani”) while he was in the 

custody of Israeli police. Maslamani wrote and signed a 

statement that read: “I myself, [Halawa,] and [one other 

person] were in a coffeehouse in Ramallah and the three of us 

were talking . . . and . . . Hallawa [sic] [said that] he 
20

perpetrated terrorist attacks,” including the one that killed 

Gilmore. J.A. 149. 

Appellants argued that this statement was admissible as a 

statement against interest. Assuming, without deciding, that 

Maslamani was “unavailable,” Appellants must still 

demonstrate that a “reasonable person in the declarant’s 

position” would think the statement “expose[d] the declarant 

to civil or criminal liability.” FED. R. EVID. 804(b)(3); accord 

United States v. Wilson, 160 F.3d 732, 739 (D.C. Cir. 1998). 

“The rationale of the statement against interest exception is 

that a reasonable person will not make a damaging statement 

against himself or herself unless it is true.” 5 JOSEPH M.

MCLAUGHLIN, JACK B. WEINSTEIN & MARGARET A. BERGER, 

WEINSTEIN’S FEDERAL EVIDENCE § 804.06[4][c] (2d ed. 

2013). 

Maslamani’s statement did not expose him to liability; he 

inculpated Halawa for Gilmore’s murder while exculpating 

himself. Appellants argue that Maslamani’s statements 

indicated his knowledge of and association with the criminal 

activities of Force 17, which exposed him to liability. 

However, Rule 804(b)(3) “does not allow admission of nonself-inculpatory statements, even if they are made within a 

broader narrative that is generally self-inculpatory.” 

Williamson v. United States, 512 U.S. 594, 600-01 (1994); see 

also FED. R. EVID. 804 advisory committee’s note to 

Exception (3) (“[A] statement admitting guilt and implicating 

another person, made while in custody, may well be 

motivated by a desire to curry favor with the authorities and 

hence fail to qualify as against interest.”). Therefore, the 

District Court did not abuse its discretion by concluding that 

Maslamani’s statement did not “expose [him] to civil or 

criminal liability[,]” FED. R. EVID. 804(b)(3), and was not 

admissible under Rule 804(b)(3).
21

D.

The District Court excluded the statement of Bashar 

Khatib (“Khatib”), Halawa’s colleague, made during the trial 

of their supervisor, Mahmoud Damara (“Damara”). While in 

the custody of Israeli police, Khatib stated that he was the 

driver and Halawa was the shooter in Gilmore’s murder. 

During the trial of Damara, Khatib testified about the 

custodial statements he made to the police. Later, during the 

deposition in this case, Khatib denied having any knowledge 

of Gilmore’s murder and refused to explain any purported 

inconsistency with his testimony at trial. 

Appellants argue that, at trial, Khatib confirmed the 

veracity of his custodial statement and, therefore, the trial 

testimony is admissible as a prior inconsistent statement 

“because Khatib repudiated that sworn trial testimony in his 

deposition in this case.” A statement is not hearsay if “[t]he 

declarant testifies and is subject to cross-examination about a 

prior statement, and the statement . . . is inconsistent with the 

declarant’s testimony and was given under penalty of perjury 

at a trial, hearing, or other proceeding or in a deposition.” 

FED. R. EVID. 801(d)(1)(A). 

Appellants try to invoke Rule 801(d)(1)(A) based on a 

purported inconsistency between Khatib’s deposition 

testimony in this case and his prior trial testimony in 

Damara’s Israeli trial. Appellees argue that the statement fails 

to meet the requirements of the hearsay exception. We need 

not resolve all of the intricacies of this dispute. Even 

assuming Rule 801(d)(1)(A) applied to this circumstance, the 

Rule’s requirements are not met because the District Court 

reasonably concluded that the statements were not 

inconsistent. At the Israeli trial, Khatib was asked questions 

about a variety of incidents and people, including Halawa, 
22

Bashir Nafa, Omar Ka’adan, and Damara. When asked about 

Gilmore’s murder, he repeatedly insisted that it had “no 

connection to us” and refused to confirm his custodial 

statement regarding Halawa’s involvement. Trial Tr. at 7, 

J.A. 667. Khatib was then asked: “According to what I 

understand from you, everything you have said about 

Muhannad Abu Halawa, about Bashir Nafa, Omar Ka’adan, 

everything is correct but whatever is related to [Damara] is 

incorrect. Correct?” Id. at 8, J.A. 669. Khatib responded: 

“Yes.” Id.

Appellants argue that this one-word answer to a 

compound question is confirmation, contrary to the rest of 

Khatib’s testimony, of his custodial statement implicating

Halawa. The District Court found “it [was] not at all clear 

that . . . Khatib understood himself to be affirming the truth of 

his prior statements implicating . . . Halawa.” J.A. 866. 

Given the trial testimony’s lack of clarity, it was not an abuse 

of discretion for the District Court to conclude that Khatib’s 

trial and deposition testimony were not inconsistent – he 

continuously refused to confirm his custodial statement – and 

that, therefore, the trial testimony could not be admitted as a 

prior inconsistent statement.3

E.

Finally, the District Court declined to admit the report of 

Appellants’ expert, Alon Eviatar (“Eviatar”). Eviatar, a 

 

3 Appellants now also argue that Khatib’s testimony is admissible 

as a statement against interest and as former testimony. However, 

by not raising those grounds in the lower court proceedings, 

Appellants failed to preserve the claim of error. See FED. R. EVID.

103(a). Furthermore, Appellants make no attempt to explain how 

this case presents “the extraordinary situation of plain error” that 

would excuse their failure. Burnett, 890 F.2d at 1240.
23

former Israel Defense Forces intelligence officer and 

Department Head of Palestinian Affairs, examined all of the 

evidence described above and opined that it was “more likely 

than not that . . . Halawa carried out the October 30, 2000 

murder of Mr. Gilmore.” 

District courts are assigned “the task of ensuring that an 

expert’s testimony both rests on a reliable foundation and is 

relevant to the task at hand.” Daubert v. Merrell Dow 

Pharms., Inc., 509 U.S. 579, 597 (1993). The test of 

reliability is “flexible” and “the law grants a district court the 

same broad latitude when it decides how to determine 

reliability as it enjoys in respect to its ultimate reliability 

determination.” Kumho Tire Co. v. Carmichael, 526 U.S. 

137, 142 (1999). “[T]he expert must form his own opinions 

by ‘applying his extensive experience and a reliable 

methodology’ to the inadmissible materials. Otherwise, the 

expert is simply ‘repeating hearsay evidence without applying 

any expertise whatsoever,’ a practice that allows the 

[proponent] to ‘circumvent the rules prohibiting hearsay.’” 

United States v. Mejia, 545 F.3d 179, 197 (D.C. Cir. 2008) 

(quoting United States v. Dukagjini, 326 F.3d 45, 58-59 (2d 

Cir. 2002)).

The District Court found that Eviatar did not apply “a 

reliable methodology” to form his opinion about the 

inadmissible materials. Eviatar briefly described how, “as a 

rule,” the strength of analyses are evaluated by: “(i) the nature 

and/or quality of the available information and data; (ii) the 

variety and diversity of the sources and/or types of 

information and data; and (iii) cumulative experience and 

knowledge and professional instincts and intuition.” Expert 

Report at 13, J.A. 899. However, he did not explain how this 

methodology led to his opinions. It was also unclear how 

Eviatar’s approach differed from that of a layperson; “where 
24

the jury is just as competent to consider and weigh the 

evidence as is an expert witness and just as well qualified to 

draw the necessary conclusions therefrom, it is improper to 

use opinion evidence for the purpose.” Henkel v. Varner, 138 

F.2d 934, 935 (D.C. Cir. 1943). Therefore, in light of the 

“broad latitude” to decide how to determine reliability, 

Kumho, 526 U.S. at 141-42, it was not an abuse of discretion 

for the District Court to deny the admission of Eviatar’s 

expert report.

F.

In sum, the District Court did not abuse its discretion in 

excluding Appellants’ evidence. The only evidence 

connecting Halawa – and, therefore, Appellees – to Gilmore’s 

murder is inadmissible hearsay. “[S]heer hearsay . . . counts 

for nothing on summary judgment.” Greer, 505 F.3d at 1315. 

Accordingly, the District Court did not err in granting 

summary judgment in favor of Appellees. See FED. R. CIV. P.

56(a). 

VI.

For the foregoing reasons, we affirm the judgment of the 

District Court. 

So ordered.