Notice: This opinion is subject to formal revision before publication in the 

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the 

Court of any formal errors so that corrections may be made before the bound 

volumes go to press. 

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 21-SP-238

RINAT AKHMETSHIN, APPELLANT,

V.

WILLIAM BROWDER, APPELLEE.

On Certification from 

the United States Court of Appeals 

for the District of Columbia Circuit

(19-7129)

(Argued September 23, 2021 Decided May 26, 2022) 

Alexandra Elenowitz-Hess, with whom Michael Tremonte and Kim Hoyt 

Sperduto were on the brief, for appellant.

Michael Gottlieb, with whom Stephanie L. Miner was on the brief, for 

appellee. 

Before GLICKMAN, BECKWITH, and MCLEESE, Associate Judges.

Opinion of the court by Associate Judge BECKWITH.

Dissenting opinion by Associate Judge GLICKMAN at page 14.

BECKWITH, Associate Judge: The United States Court of Appeals for the 

District of Columbia Circuit has certified four questions of law concerning the so-
2

called government contacts exception to this court:

1

1. May nonresident aliens who are citizens only of foreign 

countries invoke the government contacts exception?

2. If the first question is answered in the affirmative, must 

those nonresident aliens possess cognizable rights 

pursuant to the First Amendment generally, or any 

specific clause thereunder, in order to invoke the 

exception?

3. Does the government contacts exception extend to 

efforts to influence federal policy other than direct 

contacts with agents, members, or instrumentalities of 

the federal government?

4. If the third question is answered in the affirmative, 

what standard governs in determining whether 

activities not involving direct contacts with the federal 

government are covered under the exception?

These questions arise in the context of a defamation suit filed by Rinat 

Akhmetshin against William Browder in the United States District Court for the 

District of Columbia. Because Mr. Browder’s purportedly defamatory statements 

were made outside the District of Columbia, Mr. Akhmetshin, a D.C. resident, 

sought to establish personal jurisdiction over Mr. Browder, a citizen of the United 

Kingdom who is not a resident of the District or the United States, under § (a)(4) of 

 1 See D.C. Code § 11-723 (2012 Repl.).
3

the D.C. long-arm statute.2

 That provision permits a court in the District of 

Columbia to exercise personal jurisdiction over claims alleging that a defendant’s 

act outside the District caused tortious injury in the District, as long as one of three 

“plus factors” is satisfied, establishing a sufficient connection between the defendant 

and the District. D.C. Code § 13-423(a)(4) (2012 Repl.); see also EtchebarneBourdin v. Radice, 982 A.2d 752 (D.C. 2009).

The district court determined that whether the exercise of personal jurisdiction 

over Mr. Browder comports with the D.C. long-arm statute turns on whether Mr. 

Browder has engaged in a “persistent course of conduct” in the District within the 

meaning of § (a)(4). See Akhmetshin v. Browder, 407 F. Supp. 3d 11, 20–22 (D.D.C. 

2019). Mr. Browder contends that he has not, because his conduct within the District 

consisted of “government contacts” that cannot be used to establish a “persistent 

course of conduct” in the District.3

 The certified questions thus involve whether 

 2 The purportedly defamatory statements consist of four public comments 

made in July 2017—two tweets, a statement published in Business Interview, and a 

statement made in a television interview—that link Mr. Akhmetshin to Russian 

intelligence. See Akhmetshin v. Browder, 983 F.3d 542, 548 (D.C. Cir. 2020). The 

facts underlying Mr. Akhmetshin’s claim have been recounted in more detail by the 

U.S. Court of Appeals and the U.S. District Court. See id.; Akhmetshin v. Browder, 

993 F.3d 922 (D.C. Cir. 2021); Akhmetshin v. Browder, 407 F. Supp. 3d 11 (D.D.C. 

2019).

3 These contacts include meetings with members of Congress, testimony 

before governmental bodies, interview appearances, book promotion events, and 
4

someone who has renounced his U.S. citizenship can invoke the “government 

contacts” principle and, if so, whether Mr. Browder’s activities in the District fall 

within the exception.

When considering a certified question, however, “we are not limited to the 

designated question[s] of law but may ‘exercise our prerogative to frame the basic 

issues as we see fit for an informed decision.’” Delahanty v. Hinckley, 564 A.2d 

758, 760 (D.C. 1989) (quoting Penn Mut. Life Ins. Co. v. Abramson, 530 A.2d 1202, 

1207 (D.C. 1987)). Mr. Akhmetshin urges us to resolve the questions about Mr. 

Browder’s amenability to suit in the District on grounds not directly presented in the 

certified questions—namely, that the government contacts exception does not apply 

to assertions of jurisdiction under § (a)(4) of the long-arm statute at all, at least 

insofar as they rest on a “persistent course of conduct” in the District. If it does not, 

then we need not reach questions about the scope of that exception when or if it 

applies.

I.

The government contacts principle predates the enactment of the D.C. long-

 

other social and professional events related to Mr. Browder’s “advocacy for 

measures holding human rights abusers in Russia accountable for their misdeeds.” 

Akhmetshin, 983 F.3d at 546.
5

arm statute, originating as a way of determining what it meant to be “doing business” 

in the District within the meaning of the service-of-process statute then in effect. 

See Mueller Brass Co. v. Alexander Milburn Co., 152 F.2d 142, 143–44 (D.C. Cir. 

1945) (holding that employing a representative in the District to “gather[] 

information from” and “maintain contact with” federal government agencies does 

not “constitute doing business in the District of Columbia” within the meaning of 

D.C. Code § 13-103 (1940)); see also Fandel v. Arabian Am. Oil Co., 345 F.2d 87, 

89 (D.C. Cir. 1965) (describing Mueller Brass and other cases interpreting “doing 

business” in the service-of-process statute as “recogni[zing] that Washington 

presents many business organizations with special needs for a continuous and 

ponderable physical presence there, which needs are not those customarily 

associated with strictly commercial operations,” and which were thus “outside the 

range of Congressional contemplation of the scope of ‘doing business’ as that 

phrased is used in [the statute]”).

This court first considered the applicability of the doctrine to the D.C. longarm statute in Environmental Research International, Inc. v. Lockwood Greene 

Engineers, Inc., 355 A.2d 808, 813–14 (D.C. 1976) (en banc). The basis for longarm jurisdiction at issue there was § (a)(1), which provides for the exercise of 

personal jurisdiction as to a claim of relief arising from a defendant’s “transacting 

any business in the District of Columbia.” D.C. Code § 13-423(a)(1). The en banc 
6

court described § (a)(1)’s “transacting any business” provision as a more liberal 

amendment to the “doing business” criterion of the service-of-process statute, and 

concluded that “Congress did not intend to set aside [the government contacts] 

principle when it enacted the . . . long-arm statute.” Env’t Rsch., 355 A.2d at 813 & 

n.10. But the opinion leaves unclear whether the so-called exception would apply 

to other provisions of the long-arm statute. Compare, e.g., id. at 813 (“The rationale 

for the ‘government contacts’ exception to the District of Columbia’s long-arm 

statute does not hinge upon the wording of the statute. Rather, it finds its source in 

the unique character of the District as the seat of national government and in the 

correlative need for unfettered access to federal departments and agencies for the 

entire national citizenry.”), and id. at 810–11 (concluding that the D.C. long-arm 

statute extends to the extent permitted by the Due Process Clause), with, e.g., id. at 

813 (holding that defendants’ representatives’ visits to D.C. to consult with federal 

government officials cannot “constitute the transaction of business here”), and id. at 

814 (noting that “activities . . . consist[ing] solely of contacts with the federal 

government[] d[o] not constitute the transaction of business within the meaning the 

statute” and “[a]bsent activities which can place a nonresident within the scope of 

the long-arm statute, no personal jurisdiction may be asserted over him”).

To date, this court has not applied the government contacts exception to 
7

§ (a)(4)—or to any provision of the long-arm statute other than § (a)(1).

4

 And our 

post-Environmental Research cases send similarly conflicting messages about the 

conceptual basis for the doctrine. Compare, e.g., Rose v. Silver, 394 A.2d 1368, 

1373–74 (D.C. 1978) (“[T]he ‘government contacts’ principle . . . deems one not to 

 4 This court’s opinions in Environmental Research, 355 A.2d at 814 n.13,

Rose v. Silver, 394 A.2d 1368, 1368 (D.C. 1976), Beachboard v. Trustees of 

Columbia University, 475 A.2d 398, 401 (D.C. 1984), and Lex Tex Ltd. v. Skillman, 

579 A.2d 244, 244 (D.C. 1990), all concerned assertions of personal jurisdiction 

limited to “transacting any business” under § (a)(1). In Hughes v. A.H. Robins Co., 

the jurisdictional question was one of general personal jurisdiction and so did not 

involve the long-arm statute; the statute in question was D.C. Code § 13–334(a) 

(1981), the successor to the service-of-process statute under which the government 

contacts exception was first articulated. See 490 A.2d 1140, 1143 (D.C. 1985); see 

also AMAF Int’l Corp. v. Ralston Purina Co., 428 A.2d 849, 850, 851 n.2 (D.C. 

1981). In Thomas v. Disabled American Veterans Ass’n, this court reversed the trial 

court’s determination that it did not have personal jurisdiction over the defendant in 

light of unanswered questions about the applicability of the government contacts 

exception. 930 A.2d 997, 1001, 1003 (D.C. 2007). It is not clear from the court’s 

opinion which provision of the long-arm statute may have supplied a basis for 

personal jurisdiction, and the opinion does not appear to turn on the answer to that 

question. Nevertheless, the focus on business conducted out of the defendant’s D.C. 

satellite office resembles personal jurisdiction cases under § (a)(1). See id. at 1003. 

Finally, this court’s opinion in Companhia Brasileira Carbureto de Calcio v. 

Applied Industrial Materials Corp. does not turn on a particular provision of the 

long-arm statute, but the D.C. Circuit—in certifying the issue to the court—was 

considering long-arm jurisdiction under § (a)(1). See 35 A.3d 1127, 1132 n.4 (D.C. 

2012); see also 640 F.3d 369, 372–73 (D.C. Cir. 2011).

As Mr. Browder and the dissent point out, however, the D.C. Circuit has 

applied the exception to § (a)(4), as has the federal district court in D.C. E.g., Crane 

v. Carr, 814 F.2d 758, 761 (D.C. Cir. 1987); United Therapeutics Corp. v. 

Vanderbilt Univ., 278 F. Supp. 3d 407, 417–18 (D.D.C. 2017); LG Display Co. v. 

Obayashi Seikou Co., 919 F. Supp. 2d 17, 26–27 (D.D.C. 2013). None of these cases 

analyzed the basis for applying the exception in § (a)(4) cases.
8

be transacting business in the District of Columbia, or, perhaps more accurately, it 

exempts one from assertions of personal jurisdiction in the District, if the ‘sole 

contact with the District consists of dealing with a federal instrumentality.’” (quoting 

Env’t Rsch., 355 A.2d at 813)), and Companhia Brasileira Carbureto de Calcio v. 

Applied Indus. Materials Corp., 35 A.3d 1127, 1131 (D.C. 2012) (describing the 

government contacts principle as an “exception under which courts in the District of 

Columbia would refrain from exercising personal jurisdiction even though the 

requirements of due process and the long-arm statute otherwise would be satisfied”), 

with, e.g., Lex Tex Ltd. v. Skillman, 579 A.2d 244, 244 (D.C. 1990) (describing a 

certified question from the D.C. Circuit regarding the application of the government 

contacts exception as a question asking us to “interpret the District of Columbia 

‘long-arm’ statute”), and Rose, 394 A.2d at 1373 (describing the pre-Environmental 

Research cases as “interpreting the long-arm statute previously in effect” and 

“[e]ssentially . . . saying that government information-gathering in the District did 

not amount to doing business here”).

Unsurprisingly, then, there has been ongoing confusion as to the scope of the 

principle in the § (a)(1) context. Compare, e.g., Rose, 394 A.2d at 1368 (suggesting 

that a defendant would have to show that “long-arm jurisdiction would violate the 

First Amendment” to fall within the government contacts principle), with Naartex 

Consulting Corp. v. Watt, 722 F.2d 779, 787 (D.C. Cir. 1983) (holding that 
9

appearances in the District “made in an attempt to influence government action” and 

therefore “undoubtedly qualify[ing] as exercises in petitioning the government” fall 

within the government contacts exception without considering whether the exercise 

of jurisdiction based on those contacts would violate defendants’ First Amendment 

rights). Mindful of this uncertainty, we consider whether the principle applies in 

§ (a)(4) cases.

II.

If our case law does not compel the conclusion that the government contacts 

exception applies to cases under § (a)(4), neither does the text of that provision. 

Subsection (a)(1) involves “transacting any business,” and so in considering that 

provision it made sense to look to how the court had defined “doing business in the 

District of Columbia in the jurisdictional sense,” and thus to the doctrine articulated 

in Mueller Brass, 152 F.2d at 144, under the earlier service-of-process provision. 

The portion of § (a)(4) at issue here, in contrast, does not refer to “doing business.”5

 

 5 This case does not involve, and we do not address, the other “plus factors” 

in § (a)(4), including “regularly do[ing] or solicit[ing] business” or “deriv[ing] a 

substantial revenue from goods used or consumed, or services rendered, in the 

District of Columbia.” The text of § (a)(4) indicates that the “persistent course of 

conduct” plus factor addresses conduct other than doing or soliciting business. See

D.C. Code § 13-423(a)(4) (providing that D.C. courts may exercise personal 

jurisdiction over a person causing tortious injury in the District by an act outside the 

District “if he regularly does or solicits business, engages in any other persistent 
10

And nothing in the text of § (a)(4) suggests that “persistent course of conduct” refers 

only to conduct not associated with the government.

Mr. Browder argues that § (a)(4) nonetheless raises concerns more similar to 

those articulated in Mueller Brass, such that the case for applying the government 

contacts exception to cases under § (a)(4) is at least as strong—if not stronger—than 

the case for applying it to cases under § (a)(1). That is because under § (a)(4) 

defendants can be haled into court for out-of-district acts with no connection to the 

acts forming the “persistent course of conduct in the District.” See EtchebarneBourdin, 982 A.2d at 762–63. Thus, Mr. Browder argues that, like in Mueller Brass

and its progeny, which also “involved claims for relief that were unrelated to the 

defendants’ contacts with the government,” assertions of personal jurisdiction under 

§ (a)(4) “could raise serious due process concerns.” See Lex Tex, 579 A.2d at 246–

47. But the requirement of a “persistent course of conduct” addresses those 

concerns, ensuring that “there are minimum contacts with the forum sufficient to 

satisfy due process concerns.” Etchebarne-Bourdin, 982 A.2d at 762.

6

 

course of conduct, or derives substantial revenue from goods used or consumed, or 

services rendered, in the District” (emphasis added)).

6 Mr. Browder argues that the “plus factor” does not safeguard a defendant’s 

due process rights where the only contacts supporting a “persistent course of 

conduct” are government contacts because such contacts “are not ‘contacts’ within 
11

Moreover, many if not all of the concerns that underlie the exception as it has 

been applied in § (a)(1) cases can be protected by requiring defendants to show that 

the exercise of jurisdiction would violate their constitutional rights or implicate other 

existing doctrines such as forum non conveniens.7 Indeed, Mr. Browder often 

frames his argument for the continuing vitality of the government contacts exception 

in due process terms. For example, he argues that nonresidents who travel to the 

District to engage with the federal government on public policy matters have not 

“purposefully avail[ed] [themselves] of the privilege of conducting activities within 

[D.C.].” Hanson v. Denckla, 357 U.S. 235, 253 (1958). We need not extend an 

 

the meaning of International Shoe and its progeny.” Hughes, 490 A.2d at 1145 n.4. 

As we note infra, Mr. Browder’s argument is not a sufficient basis for adopting a 

nontextual exception to long-arm jurisdiction under § (a)(4) but a constitutional 

argument that can be addressed under a traditional due process analysis. See Int’l 

Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (addressing whether the exercise 

of jurisdiction comports with due process).

7 Cf. Zeneca Ltd. v. Mylan Pharms., Inc., 173 F.3d 829, 834–36 (Fed. Cir. 

1999) (opinion of Rader, J.) (concluding that reversal of finding that Maryland courts 

had personal jurisdiction over corporate defendant that had petitioned federal 

agency’s Maryland office was warranted under a “traditional Due Process analysis” 

because “[defendant’s] contacts [were] not with the state of Maryland at all” but 

“involve[d] the federal government whose office . . . happen[ed] to be in that state,” 

such that defendant had not “purposefully availed itself of the benefits of the laws 

of Maryland or purposefully directed its activities at Maryland residents”). But cf. 

id. at 833–34 (opinion of Gajarsa, J.) (concluding that “the exercise of personal 

jurisdiction over [defendant] in Maryland would be permissible” under “traditional 

notions of fair play and substantial justice” and thus that application of a separate 

government contacts exception was necessary to take into account “concerns . . . not 

adequately addressed by a traditional analysis of personal jurisdiction”).
12

“exception” under District law to § (a)(4) to capture this concern, as it is already a 

constitutional prerequisite to the exercise of specific personal jurisdiction. See id. 

Defendants can also raise many of the concerns that have informed the government 

contacts principle in arguing that the exercise of personal jurisdiction would not be 

constitutionally “reasonable.” See, e.g., World-Wide Volkswagen Corp. v. Woodson, 

444 U.S. 286, 292 (1980) (describing factors going to the “reasonableness” of 

exercising jurisdiction, including “the forum State’s interest in adjudicating the 

dispute” and “the shared interest of the several States in furthering fundamental 

substantive social policies”); see also Burger King Corp. v. Rudzewicz, 471 U.S. 

462, 477–78 (1985) (“[R]equirements inherent in the concept of ‘fair play and 

substantial justice’ may defeat the reasonableness of jurisdiction even if the 

defendant has purposefully engaged in forum activities.” (quoting World-Wide 

Volkswagen, 444 U.S. at 292)).

Other underpinnings of the government contacts principle can also be 

protected through existing doctrines and constitutional inquiries. We recognized in 

Lex Tex that concerns about D.C. becoming a “national judicial forum” can be 

considered “in determining whether to dismiss on the ground of forum non 

conveniens.” 579 A.2d at 249 n.10 (quoting Env’t Rsch., 355 A.2d at 813). And to 

the extent the government contacts exception has a “First Amendment . . . 

underpinning,” this court already suggested in Rose that a First Amendment–based 
13

government contacts exception would require a defendant to show that “long-arm 

jurisdiction would violate the First Amendment.” 394 A.2d at 1374; see also Lex 

Tex, 579 A.2d at 244, 249 (concluding that the government contacts principle did 

not apply because the exercise of personal jurisdiction in the District did not threaten 

either party’s First Amendment rights); Companhia Brasileira, 35 A.3d at 1132–33 

(recognizing the importance of the right to petition the government but holding that 

the government contacts exception does not apply to fraudulent government 

petitions because “it does not offend the First Amendment to recognize a fraud 

exception to the government contacts exception”).8

 That constitutional inquiry does 

not depend on the scope of the exception under District law.

Though a prophylactic principle of District law might avoid some of these 

constitutional questions, we are not persuaded that a case has been made for reading 

such an exception into § (a)(4). In light of the conceptual uncertainty underlying the 

exception, it is unclear what the proper scope of such an exception would be. For 

this reason and because we see no indication—textual or otherwise—that the 

 8 Whether “concern over the venue of litigation” could make out a First 

Amendment claim is a separate question of federal constitutional law that we need 

not address. See Lex Tex, 579 A.2d at 249 n.13; see also Keeton v. Hustler Mag., 

Inc., 465 U.S. 770, 780 n.12 (1984) (“[W]e reject categorically the suggestion that 

invisible radiations from the First Amendment may defeat jurisdiction otherwise 

proper under the Due Process Clause.”); Calder v. Jones, 465 U.S. 783, 790–91 

(1984).
14

legislature intended the exception to apply to § (a)(4), questions about the scope and 

applicability of any exception to § (a)(4) are better left for the legislature.

III.

For the foregoing reasons, we decline to construe the “persistent course of 

conduct” requirement in § (a)(4) of the D.C. long-arm statute to exclude government 

contacts. Should Mr. Browder’s arguments that he has not purposefully availed 

himself of the protections and benefits of D.C. law by engaging in federal policy 

advocacy in the District nonetheless bear on the constitutionality of the district 

court’s exercise of personal jurisdiction over him as to Mr. Akhmetshin’s claims, 

that is a question the federal courts can resolve.

In accordance with D.C. Code § 11-723(g), the Clerk is directed to transmit a 

copy of this opinion to the United States Court of Appeals for the District of 

Columbia Circuit and to each of the parties.

So ordered.

GLICKMAN, Associate Judge, dissenting: I respectfully dissent from the 

majority’s conclusion that the government contacts exception does not apply to 

assertions of long-arm jurisdiction under § (a)(4) of the District of Columbia longarm statute, D.C. Code § 13-423 (2012 Repl.), that are based on the defendant’s 
15

“persistent course of conduct” in the District. Until now, the courts confronted with 

this question — both the D.C. Circuit and the D.C. District Court — have understood 

that the exception applies to § (a)(4) just as it concededly applies to § (a)(1) of the 

long-arm statute.9 In my view, those courts correctly understood the scope of the 

exception. When this court, sitting en banc, first recognized it, the court emphasized 

that “[t]he rationale for the ‘government contacts’ exception to the District of 

Columbia’s long-arm statute does not hinge upon the wording of the statute,” and 

instead stemmed from “the unique character of the District as the seat of national 

government.”10 As I explain below, that means the exception’s rationale is equally 

 9 See, e.g., Crane v. Carr, 814 F.2d 758, 761-62, 764 (D.C. Cir. 1987) (“D.C. 

Code § 13-423(a)(4) . . . requires something more than effects in the District caused 

by acts done elsewhere. The pivotal question with respect to that subsection’s 

application here is whether [defendant’s] ties to the District of Columbia amount to 

a persistent course of conduct . . . in the District . . . . The enumeration does not 

include the [defendant’s] government contacts relating to grant awards or other 

[defendant] connections with federal agencies. . . . [U]nder D.C. Code § 13-

423(a)(4), [plaintiff] should be allowed to seek a more detailed delineation of 

[defendant’s] activities in the District, other than the [defendant’s] government 

contacts.” (internal citations and quotation marks omitted)); United Therapeutics 

Corp. v. Vanderbilt Univ., 278 F. Supp. 3d 407, 417 (D.D.C. 2017) (“Offices 

established in the District to lobby the federal government do not constitute a 

‘persistent course of conduct’ under section 13-423(a)(4).”); LG Display Co. v. 

Obayashi Seikou Co., 919 F. Supp. 2d 17, 26-27 (D.D.C. 2013) (rejecting argument 

for in personam jurisdiction under § 13-423(a)(4) based on foreign defendants’ 

submission of patent applications to the U.S. Patent and Trademark Office; “[s]tated 

simply, a party’s contacts with government agencies do not enter the jurisdictional 

calculus”), aff’d, 615 F. App’x 954 (Fed. Cir. 2015).

10 Env’t Rsch. Int’l, Inc. v. Lockwood Greene Eng’rs, Inc., 355 A.2d 808, 813 
16

applicable whether the basis for asserting long-arm jurisdiction over a person outside 

the District of Columbia is the person’s “transacting any business in the District of 

Columbia,” as provided in § 13-423(a)(1), or that the person “engages in any other 

persistent course of conduct, . . . in the District of Columbia,” as provided in § 13-

423(a)(4).

11 Thus, unlike the majority, I would address the questions posed to us by 

 

(D.C. 1976) (en banc).

11 In pertinent part, D.C. Code § 13-423(a) states:

A District of Columbia court may exercise personal 

jurisdiction over a person, who acts directly or by an agent, 

as to a claim for relief arising from the person’s —

(1) transacting any business in the District of Columbia;

. . . 

(4) causing tortious injury in the District of Columbia by 

an act or omission outside the District of Columbia if he 

regularly does or solicits business, engages in any other 

persistent course of conduct, or derives substantial 

revenue from goods used or consumed, or services 

rendered, in the District of Columbia[.]

Although long-arm jurisdiction over a person under § (a)(4) may exist if the 

person “[1] regularly does or solicits business, [2] engages in any other persistent 

course of conduct, or [3] derives substantial revenue from goods used or consumed, 

or services rendered, in the District of Columbia,” the majority opinion addresses 

only whether the government contacts exception applies to the second of those three 

so-called “plus factors” (engaging in a “persistent course of conduct” in the District). 

In concluding that it does not, the majority implies that the exception might apply to 

one or both of the other plus factors. See ante at 9 n.5. Perhaps the majority 

perceives an incongruity in applying the government contacts exception to 

“transacting any business” in the District (under § (a)(1)) but not to “regularly 
17

the D.C. Circuit with the answers offered at the conclusion of this dissent.

In the words of the en banc court in Environmental Research, the government 

contacts exception is a “long-standing and still vital doctrine that entry into the 

District of Columbia by nonresidents for the purpose of contacting federal 

governmental agencies is not a basis for the assertion of in personam jurisdiction.”12 

In the ensuing years, this court has adhered to the view that “the unique concerns 

underlying the government contacts principle are as compelling today as they were 

when this court decided Environmental Research.”13 While the rationale for the 

exception has not been made entirely clear, it is not as elusive, in my view, as the 

majority opinion makes it out to be. The government contacts exception is not of 

constitutional dimension, but an interpretation of the District’s long-arm statute 

based on weighty policy considerations. 

The government contacts exception is not grounded in the Due Process 

 

do[ing] or solicit[ing] business” in the District (under § (a)(4)). However, the 

majority opinion does not explain why the applicability vel non of the exception to 

the exercise of long-arm jurisdiction under § (a)(4) should turn on which plus factor 

is involved.

12 355 A.2d at 813.

13 Companhia Brasileira Carbureto De Calcio v. Applied Indus. Materials 

Corp., 35 A.3d 1127, 1132 (D.C. 2012).
18

Clause. Our long-arm statute was enacted to extend personal jurisdiction of the 

District’s courts virtually to the limits of due process.14 The government contacts 

exception is an exception to the assertion of jurisdiction consistent with due process,

so it must have a different rationale. 

Nor is a satisfactory rationale for the government contacts exception to be 

found in the First Amendment right to “petition the Government for the redress of 

grievances” (or elsewhere in that Amendment). In the 1978 case Rose v. Silver, a 

division of this court did conclude that “the First Amendment provides the only 

principled basis for exempting a foreign defendant from suit in the District of 

Columbia, when its contacts are covered by [§ (a)(1) of] the long-arm statute and are 

sufficient to withstand a traditional due process attack.”15 But the foundation for 

 14 Though, by its terms, not quite all the way to those limits, see Mouzavires 

v. Baxter, 434 A.2d 988, 991 (D.C. 1981) (en banc); see also Moncrief v. Lexington 

Herald-Leader Co., 807 F.2d 217, 221 (D.C. Cir. 1986). It has been noted that, 

while the “transacting business” language of § (a)(1) has been interpreted to be 

coextensive with the requirements of due process, § (a)(4) “has been construed more 

narrowly.” GTE New Media Servs. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. 

Cir. 2000) (citing Crane, 814 F.2d at 762). 

15 394 A.2d 1368, 1374 (D.C. 1978). The Rose court expressly limited its 

conclusion to invocation of the government contacts exception to assertions of longarm jurisdiction under § (a)(1), where the claim against the foreign defendant 

actually arises from that defendant’s governmental contacts in the District. The 

court emphasized that its opinion did “not affect” invocation of the government 

contacts exception to preclude the assertion of long-arm jurisdiction under other 

statutory provisions, such as § (a)(4), that pertain to claims not arising from the 
19

this conclusion, which has generated controversy as potentially conflicting 

impermissibly with the en banc Environmental Research decision,16 was 

subsequently eroded when the Supreme Court “reject[ed] the suggestion that First 

Amendment concerns enter into the jurisdictional analysis” where jurisdiction is 

otherwise proper under the Due Process Clause because “the potential chill on 

protected First Amendment activity stemming from libel and defamation actions is 

already taken into account in the constitutional limitations on the substantive law 

governing such suits.”17 In any event, that the government contacts exception may 

prevent the assertion of long-arm jurisdiction from burdening the exercise of the 

First Amendment right to petition is a partial justification at best, for the exception 

unquestionably applies to government contacts not within the coverage of the right 

to petition18 and, indeed, to contacts that do not implicate First Amendment rights at 

 

defendant’s governmental contacts. Id. at 1374 n.6.

16 See Companhia Brasileira, 35 A.3d at 1133 n.5 (noting apparent conflict 

between Environmental Research and Rose and declining to decide whether the 

government contacts exception rests solely on the First Amendment); Naartex 

Consulting Corp. v. Watt, 722 F.2d 779, 786-87 (D.C. Cir. 1983) (same). 

17 Calder v. Jones, 465 U.S. 783, 790 (1984); see also McDonald v. Smith, 

472 U.S. 479, 482-85 (1985) (holding that “there is no sound basis for granting 

greater constitutional protection to statements made in a petition [for the redress of 

grievances] than [to] other First Amendment expressions.”).

18 For example, the government contacts exception doubtless applies to 

persons invited to testify before Congress or provide information to Congressional 

committees, but no citizen has a right to do so under the Petition Clause, because 
20

all.

19 And for its part, the First Amendment protects a host of activities that do not 

in any way involve government contacts, while the exception to be explained is 

limited to contacts with the federal government. A rationale based on the need to 

protect the exercise of First Amendment rights thus fails because it is simultaneously 

underinclusive (by not explaining the full scope of the government contacts 

exception) and overinclusive (by not explaining the limitation of the exception to 

contacts with the federal government).

Rather than being grounded in the Constitution, the government contacts 

exception is a matter of statutory interpretation. It is based, fundamentally, on nonconstitutional policy considerations deemed to accord with Congress’s intent in 

 

that Clause “does not grant to members of the public generally a right to be heard by 

public bodies making decisions of policy.” Minn. State Bd. for Cmty. Colls. v. 

Knight, 465 U.S. 271, 283 (1984).

19 See Robo-Team NA, Inc. v Endeavor Robotics, 313 F. Supp. 3d 19, 25 

(D.D.C. 2018) (“It is by no means established that the government contacts rule is 

in fact limited to activities that implicate the First Amendment . . . . This Court has 

consistently held that government contracting activities fall within the scope of the 

government contacts rule.” (citing, inter alia, Alkanani v. Aegis Def. Servs., LLC, 

976 F. Supp. 2d 13, 25 (D.D.C. 2014)); see also, e.g., Fandel v. Arabian Am. Oil 

Co., 345 F.2d 87, 88-89 (D.C. Cir. 1965); Morgan v. Richmond Sch. of Health &

Tech., Inc., 857 F. Supp. 2d 104, 107-09 (D.D.C. 2012); Lex Tex Ltd. v. Skillman, 

579 A.2d 244, 246-47 (D.C. 1990). As explained below, the very cases that first 

articulated the government contacts exception applied it to business activities with 

the federal government not constituting the exercise of rights protected by the First 

Amendment. 
21

enacting the District’s current long-arm statute and its precursors. In Environmental 

Research, this court derived the exception to our current statute from its adumbration 

in 1945 by the D.C. Circuit in Mueller Brass Co. v. Alexander Milburn Co.20 The 

jurisdictional statute at issue in that case provided for service of process on foreign 

corporations “doing business in the District.”21 Mueller Brass Co. was a corporation 

that “had large contracts which were obtained through Government agencies upon 

bids submitted pursuant to invitations and upon Government specifications.”22 The 

company did not perform those contracts in the District, but it had an office and 

employed an agent here “for the purpose of gathering information from Government 

departments and agencies and for convenience of communication between the 

Government and the company in respect to Government work being done throughout 

the country.”23 Recognizing the unique status of Washington, D.C. as “the seat of 

the national government”24 as well as “[t]he manifold respects in which the Federal 

 20 152 F.2d 142 (1945). See Env’t Rsch., 355 A.2d at 813 (“This so-called 

‘government contacts’ principle first was articulated in Mueller Brass . . . , when the 

predecessor of our present [long-arm] statute was in effect.”).

21 152 F.2d at 143.

22 Id.

23 Id.

24 Id. (quoting Neely v. Phila. Inquirer Co., 62 F.2d 873, 875 (D.C. Cir. 1932)).
22

Government touches business concerns,”25 and cognizant that the maintenance of a 

liaison office with federal agencies here was “necessary to the efficient and 

expeditious conduct of [the company’s] work throughout the country for the 

Government,” the Mueller Brass court concluded that the company’s liaison 

activities with federal agencies in the District were not what Congress meant by 

“doing business in the District of Columbia.”26 

In Environmental Research, this court reasoned that “Congress did not intend 

to set aside” the government contacts “principle” articulated in Mueller Brass “when 

it enacted the present long-arm statute.”27 Echoing the D.C. Circuit’s opinion, the

en banc court said that the government contacts exception: 

 25 Id. at 144.

26 Id. For present purposes, it is worth highlighting the fact that in formulating 

an exception from long-arm jurisdiction for government contacts, Mueller Brass

drew inspiration from the similar policy considerations underlying the exception for 

newsgathering activities in the District announced in Neely, under which “the mere 

collection of news material here for use in subsequent publication elsewhere . . . is 

not a doing of business here, within the meaning of the [jurisdictional] statute” then 

in effect. Neely, 62 F.2d at 875. The relationship between the newsgathering 

exception and the government contacts exception is notable because the 

newsgathering exception has been held to apply to the “persistent course of conduct” 

requirement in § (a)(4) of the District’s current long-arm jurisdiction statute. See 

Moncrief, 807 F.2d at 222 n.9.

27 355 A.2d at 813.
23

finds its source in the unique character of the District as 

the seat of national government and in the correlative need 

for unfettered access to federal departments and agencies 

for the entire national citizenry. To permit our local courts 

to assert personal jurisdiction over nonresidents whose 

sole contact with the District consists of dealing with a 

federal instrumentality not only would pose a threat to free 

public participation in government, but also would 

threaten to convert the District of Columbia into a national 

judicial forum.

[28]

 

Applying the exception to the facts before it, the en banc court held that visits by a 

company’s personnel to the District of Columbia to consult with government agency 

officials about obtaining a construction grant did not constitute the transaction of 

business in the District within the meaning of the long-arm statute, and thus were 

not a basis for the assertion of in personam jurisdiction.

29

Given its underpinnings in Mueller Brass and Environmental Research, the 

government contacts exception is best understood, in my view, as primarily a 

manifestation of a policy of “comity” between the courts of the District of Columbia 

and the federal government.30 The underlying notion is that basing District courts’

 28 Id.

29 Id.

30 See SEC v. Banner Fund Int’l, 211 F.3d 602, 612 (D.C. Cir. 2000) 

(“[C]omity summarizes in a brief word a complex and elusive concept — the degree 

of deference that a domestic forum must pay to the act of a foreign government not 

otherwise binding on the forum.”) (internal quotation marks omitted). The practice 
24

long-arm jurisdiction on a foreign defendant’s contacts with the federal government 

in the District risks discouraging persons otherwise outside the District’s jurisdiction 

from engaging in such contacts (or penalizing them for doing so), and thereby 

threatens to burden not just their interests but important interests of the federal 

government as well.

31 For that reason, while the exception encompasses 

communications with the government by persons exercising First Amendment 

rights, it is not limited to them. In other words, I think the Second Circuit was correct 

when it observed that “[a]lthough [the District of Columbia’s] ‘government contacts’ 

 

of comity by the District’s courts vis-à-vis the federal government is not an 

unfamiliar concept. See, e.g., Thomas v. DAV Ass’n, 930 A.2d 997, 1001 n.8 (D.C. 

2007) (explaining that the court’s “power to stay a proceeding until determination 

of a pending federal action . . . . is not a matter of right, but a matter of comity and 

discretion”). The commentary to D.C. App. R. 49(c)(2) cites “comity between the 

District and the federal government” as one reason counseling “deference to federal 

departments and agencies that determine to allow persons not admitted to the Bar to 

practice before them.”

31 See, e.g., McGrain v. Daugherty, 273 U.S. 135, 175 (1927) (“A legislative 

body cannot legislate wisely or effectively in the absence of information respecting 

the conditions which the legislation is intended to affect or change; and where the 

legislative body does not itself possess the requisite information — which not 

infrequently is true — recourse must be had to others who do possess it.”). The 

policy of declining long-arm jurisdiction to avoid burdening such activity is 

analogous to the well-recognized policy of not basing long-arm jurisdiction on a 

defendant’s prior contacts with a jurisdiction’s courts as party or witness. See Lamb 

v. Schmitt, 285 U.S. 222, 225 (1932) (“The general rule that witnesses, suitors, and 

their attorneys, while in attendance in connection with the conduct of one suit, are 

immune from service of process in another, is founded, not upon the convenience of 

the individuals, but of the court itself.”).
25

rule is based in part on the constitutional right ‘to petition the Government for redress 

of grievances,’ . . . it also appears to be based on non-constitutional policy 

considerations, such as the Judiciary’s reluctance to interfere with the smooth 

functioning of other governmental entities.”32 

Although the Environmental Research court spoke of the “need for unfettered 

access to federal departments and agencies for the entire national citizenry,”33 the 

exception is applicable whether the person communicating with the federal 

government is a citizen or not, because comity protects the interests of the federal 

government itself. The federal government has myriad interests (in gathering 

information, entering into contracts, and so forth) that would be hindered by 

impediments to its legitimate communications with non-citizens as well as citizens. 

Nothing in Environmental Research indicates an intention on the part of the court to 

restrict the government contacts exception to citizens.

This comity rationale for the government contacts exception is consistent 

 32 Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione, 937 F.2d 44, 51 (2d 

Cir. 1991) (articulating an analogous rule to cover assertions of personal jurisdiction 

over the Palestine Liberation Organization in New York based on its activities as a 

permanent observer at the United Nations). 

33 355 A.2d at 813 (emphasis added).
26

with, and helps explain, the cases in which this court has held the exception 

inapplicable, namely Lex Tex Ltd. v. Skillman34 and Companhia Brasileira 

Carbureto De Calcio v. Applied Industrial Materials Corp.35 In Lex Tex, we held 

that an individual who came to the District of Columbia to pursue activities with the 

federal government exclusively on behalf of an out-of-state principal was not

immune from suit here by that principal for claims arising directly out of such 

activities. Allowing such litigation to proceed in the District of Columbia does not 

threaten the interests of the federal government, which lie in communicating with 

the principal in the course of its legitimate activities and operations; instead, “[i]f 

anything, it enhances [those interests].”36 In Companhia Brasileira, this court held 

that “a person who uses the government as an instrumentality of fraud, and thereby 

causes unwarranted government action against another, forfeits the protection of the 

government contacts exception.”37 “Such fraud does not warrant our protection” 

under a comity rationale because the government has no interest in being 

fraudulently manipulated, as “use of the known lie as a tool is at once at odds with 

 34 579 A.2d 244 (D.C. 1990).

35 35 A.3d 1127 (D.C. 2012).

36 Lex Tex, 579 A.2d at 249. 

37 35 A.3d at 1134 (internal citation omitted).
27

the premises of democratic government and with the orderly manner in which 

economic, social, or political change is to be effected.”38

It is undisputed that long-arm jurisdiction cannot be predicated on federal 

government contacts in the District of Columbia when its assertion is based on the 

defendant’s transaction of business in the District under D.C. Code § 13-423(a)(1). 

I see no reason, and the majority opinion identifies no reason, why the government 

contacts exception should be unavailable when long-arm jurisdiction is asserted 

based on the defendant’s “persistent course of conduct” in the District under § 13-

423(a)(4). The rationale of the exception supports its applicability under both 

provisions. If anything, it would seem that the argument for the government contacts 

exception is stronger when § (a)(4) is invoked, for in that case (unlike under § (a)(1)) 

the plaintiff’s claim for relief does not arise from, and typically will not be related 

to, the defendant’s government contacts.39

 38 Id. at 1133 (quoting McDonald v. Smith, 472 U.S. 479, 487 (1985) 

(Brennan, J., concurring) quoting Garrison v. Louisiana, 379 U.S. 64, 75 (1964)).

39 Section (a)(4) provides for long-arm jurisdiction when the claim for relief 

arises from acts or omissions by the defendant outside the District of Columbia, 

which by definition are not included in the “plus factor” of the defendant’s persistent 

course of conduct within the District. In contrast, § (a)(1) is available when the 

claim for relief arises from the defendant’s conduct (transacting business) in the 

District.
28

Based on the foregoing understanding of the government contacts exception 

and its rationale, I would answer the D.C. Circuit’s certified questions as follows.

(1) May nonresident aliens who are citizens only of 

foreign countries invoke the government contacts 

exception? 

Answer: Yes. The exception is intended to prevent 

interference with legitimate contacts with the federal 

government in the District, regardless of the identity of the 

persons engaging in those contacts. 

(2) If the first question is answered in the affirmative, 

must those nonresident aliens possess cognizable rights 

pursuant to the First Amendment generally, or any specific 

clause thereunder, in order to invoke the exception? 

Answer: No. Those nonresident aliens need not possess 

cognizable First Amendment rights in order to invoke the 

exception.

(3) Does the government contacts exception extend to 

efforts to influence federal policy other than direct 

contacts with agents, members, or instrumentalities of the 

federal government?

Answer: No. The exception is limited by its rationale to 

direct contacts with federal government agents, members, 

or instrumentalities.

(4) If the third question is answered in the affirmative, 

what standard governs in determining whether activities 

not involving direct contacts with the federal government 

are covered under the exception? 

Answer: The third question is answered in the negative, 

so the fourth question does not arise.