# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 2019 Decided April 14, 2020

No. 17-7168

S HABTAI S COTT S HATSKY , INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE E STATE OF K EREN S HATSKY , ET AL ., A PPELLANTS

v.

P ALESTINE L IBERATION O RGANIZATION , ET AL ., A PPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:02-cv-02280)

Tejinder Singh argued the cause for a ppellants. With him on the briefs were Charles H. Davis

, Robert Joseph Tolchin

, and Meir Katz

. Mitchell R. Berger argued the cause for appellees. With him on the brief were Gassan A. Baloul

, Amy B. Doolittle

, Alexandra E. Chopin , and Aaron W. Knights

.

Before: H ENDERSON , M ILLETT , and W ILKINS , Circuit Judges

. Opinion for the Court filed by Circuit Judge M ILLETT

.2

M ILLETT , Circuit Judge : The American victims of a 2002 suicide bombing in the Wes t Bank and their families (collectively, “the Families”) brought this suit under the AntiTerrorism Act, 18 U.S.C. §§ 2331 et seq. , against two entities that they believe are among thos e responsible for the attack. Specifically, the Families allege that the Popular Front for the Liberation of Palestine (“Popular Front”), a designated foreign terrorist organization, orch estrated the 2002 bombing. See Families’ Response to Palestin ian Defendants’ Statement of Material Facts at ¶¶ 1–13, Shatsky v. Palestine Liberation Org.

, No. 1:02-cv-02280-RJL (D.D.C . Jan. 29, 2016), ECF No. 331 at 59–65. In this case , the Families seek to hold th e Palestinian Authority and the Palestin e Liberation Organization (collectively, “the Palestinian Defendants”) liable for the attack on the theory that they enab led the bombing through their provision of significant support to the Popular Front.

As described in the complaint, the harms suffered by the Families as a result of the bombing are tragic and horrific. This case, though, turns not on the merits of their claims for remediation, but on the narrow que stion of where those claims should be litigated. We hold that the district court erred in rejecting the Palestinian Defendants’ argument that the court lacked personal jurisdiction. We therefore vacate the district court’s judgment and remand for it to dismiss the case without prejudice.

I

A

On February 16, 2002, a suicide bomber attacked a pizzeria in Karnei Shomron, a town in the West Bank. The bombing killed United States citizens Keren Shatsky and Rachel Thaler and wounded United States citizens Steven Braun, Chana Friedman, Leor Thal er, and Hillel Trattner, along3
with a non-citizen, Ron it Trattner. For th e purpose of summary judgment only, the parties agr ee that the bomber was Sadeq Ahed Mahmoud Abdel Hafez. Palestinian Defendants’ Response to Families’ Reconsti tuted Statement of Purported Material Facts at ¶ 5, Shatsky , No. 1:02-cv-02280-RJL (D.D.C. March 2, 2016), ECF No. 332-1; Families’ Response to Palestinian Defendants’ Statement of Material Facts, supra , at ¶ 5, ECF No. 331 at 61.

In November 2002, the Shatsky family, Steven Braun, and the other bombing surv ivors and their familie s filed suit against (i) the Palestinian Defendants, (ii) Syria and several Syrian governmental entities and indivi duals (“Syrian Defendants”), and (iii) 99 Doe defendants. The Families asserted claims under the Anti-Terrorism Act, wh ich authorizes “[a]ny national of the United States injured in his or her person, property, or business by reason of an act of in ternational terrori sm, or his or her estate, survivors, or heirs,” to sue fo r treble damages “in any appropriate district court of the United States[,]” 18 U.S.C. § 2333(a).

The Palestinian Authority is a government established following the 1993 Oslo Accords between Israel and the Palestine Liberation Organization. See Livnat v. Palestinian Auth. , 851 F.3d 45, 47 (D.C. Cir. 2017). The Authority is headquartered in the West Bank and provides civilian and internal security services in parts of the West Bank and Gaza Strip. Id. The Palestine Liberatio n Organization, commonly known as the “PLO,” is the international representative of the Palestinian people. Familie s’ Response to Palestinian Defendants’ Statement of Material Facts, supra , at 18, ECF No. 331 at 76.

The Popular Front is one of th e seven “factions” that make up the PLO. J.A. 89. The United States government has4
designated the Popular Front a fo reign terrorist organization. See 8 U.S.C. § 1189; see also Designation of Foreign Terrorist Organizations, 62 Fed. Reg. 52,650, 52,650 (Oct. 8, 1997) (original designation); In re Review of the Designation of Popular Front for the Libera tion of Palestine (and Other Aliases) as a Foreign Terrori st Organization, 80 Fed. Reg. 25,766, 25,766 (May 5, 2015) (maint aining the designation).

The Families allege that the Popular Front planned and carried out the bombing. They contend that the Palestinian Defendants facilitated the bom bing by providing financial support to the Popular Front. Specifically, they accuse the Palestinian Defendants of (i) paying the alleged mastermind, Ra’ed Nazal, a salary for a no-show job; (ii) covering some of the Popular Front’s necessary ex penses, including rent for its office in the nearby city Qalqily a, and (iii) providing what the Families call “martyr payments ” to Nazal’s and Hafez’s families after their deaths. See Families’ Br. 27–28.

B

1

Due to a number of procedural complexities, this case wended its way through district court for fifteen years. The case started when the Families filed their complaint in November 2002 and served the Pa lestinian Defendants in July 2003.

Two months later, the Sy rian Defendants and the Palestinian Defendants jointly m oved for a protective order to prevent the Families from movi ng forward with depositions before the defendants’ “sovereign and governmental immunity[] and other defenses” could be litigated. Defendants’ Motion for Protective Order at 1–2, Shatsky

, No. 1:02-cv-02280-RJL (D.D.C. Sept. 11. 2003), ECF No. 14.5
That same day, the Clerk of the Court entered a default against the Palestinian Defendants under Federal Rule of Civil Procedure 55(a) because they had not responded to the complaint by what the Families a sserted was the deadline. By way of explanation, Rule 55(a) requires the Clerk to enter a default when a defendant “has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise[.]” F ED

. R. C IV

. P. 55(a). Once the Clerk does so, the plaintiff may “apply to the court for a default judgment” under Rule 55(b). F ED

. R. C IV

. P. 55(b)(2).

The Palestinian Defendants then moved to strike that default and requested additi onal time to respond to the complaint. While those mo tions were still pending, the Palestinian Defendants moved to dismiss the complaint under Federal Rule of Civil Procedur e 12(b), asserting among other things sovereign and governmental immunity and lack of personal jurisdiction. As fo r personal jurisdiction, the Palestinian Defendants argued that they lacked the minimum contacts with the United States that the Due Process Clause requires. They explained that their only contacts with the United States were the activities of Palestine’s Mission to the United Nations and its ambassador in New York. The Palestinian Defendants argued that those diplomatic contacts were “government contacts” that could not provide a basis for personal jurisdiction. J.A. 147–148.

On June 23, 2004, the district court entered minute orders granting the motions for a protec tive order and to strike the entry of default.

Eight months later, the district court denied the Palestinian Defendants’ motion to dismiss in a minute order that provided no reasoning. At a status hearing the next month, the Palestinian Defendants request ed an explanation, but the6
district court declined to provide one. The Palestinian Defendants then informed the cour t that they planned to rest their defense entirely on jurisdic tion and were contemplating an interlocutory appeal.

The Palestinian Defendants, however, never took an interlocutory appeal. After the Palestinian Defendants failed to file an answer or otherwise pa rticipate in the litigation, the Clerk of the Court entered a second default against them on April 12, 2005.

The next month, the Families voluntarily dismissed their claims against the Syrian Defendants without prejudice. 1

On January 31, 2006, the Palestinian Defendants informed the district court that they had new political leadership and sought a stay until May 1, 2006 to allow the new government to decide how to handle the litiga tion. The district court denied the motion as moot in a May 30, 2006 minute order.

Almost a year later, the Famil ies asked the court to enter a default judgment against the Palestinian Defendants under Federal Rule of Civil Procedure 55(b). In their brief opposing the motion, the Palestinian Defendants reasserted their personal jurisdiction argument: “For the reasons presented in their Motion to Dismiss and supporting memorandum, the [Palestinian Defendants] continue to contend that they have insufficient contacts with the United States to warrant the Court’s exercise of personal ju risdiction over them and reserve that issue.” J.A. 161 (citation omitted).

1 A plaintiff may “dismiss an action without a court order by filing * * * a notice of dismissal” so long as the opposing party has not yet “serve[d] either an answer or a motion for summary judgment[.]” F ED

. R. C IV

. P. 41(a)(1)(A)(i).7

2

The Palestinian Defendants tried a new approach in December 2007. They moved to vacate the Clerk’s entry of default, emphasizing that they were now “committed to litigating the case on the merits.” J.A. 182 (formatting modified). The Palestinian De fendants explained that, earlier in the litigation, they “might rightly have wondered why they would be haled into U.S. courts to litigate claims” that arose abroad “against the backdrop of the Palestinian–Israeli conflict.” J.A. 183. But they to ld the court that they “ha[d] come to appreciate that they need to address these cases head on, rather than continuing to rely exclusively on jurisdictional defenses.” J.A. 183.

At the same time, the Palestinian Defendants filed an answer that both responded to the merits of the complaint’s allegations and, as relevant he re, raised lack of personal jurisdiction as an affirmative defense. The Palestinian Defendants’ brief in support of vacating the default “confined their discussion” of the “merito rious defense” requirement for vacatur “to [the Palestinian Defendants’] lack of responsibility” for the bom bing. J.A. 205–206. But the Palestinian Defendants also were explicit that, in focusing their argument on the merits, they did not “waiv[e] any of the defenses raised in the veri fied answer[.]” J.A. 205.

Three and a half years later, the district court granted the Palestinian Defendants’ motion and vacated the default. Shatsky v. Syrian Arab Republic , 795 F. Supp. 2d 79, 81 (D.D.C. 2011). Although the court found the default willful— in large part because the Palestinian Defendants’ previous counsel had represented that they “only intended to litigate jurisdiction and nothing more”—th e court was “now convinced that [the Palestinian Defendants are] truly committed to8
litigating this matter.” Id. at 82–83. Because of that, the district court concluded that the Palestinian Defendants’ “willfulness alone does not, on balance, preclude vacatur,” and that other considerations warranted “allow[ing] the parties to proceed on the merits.” Id. at 83–85.

After nearly two years of discovery, the Palestinian Defendants moved for summary judgment on the merits in August 2013. They did not raise personal jurisdiction as an additional ground for summary judgment.

While that motion was pending, the Supreme Court decided Daimler AG v. Bauman , 571 U.S. 117 (2014). That case held that a court may exer cise general jurisdiction over a nonresident corporation only if th e corporation is “essentially at home in the forum.” Id. at 138–139. Absent exceptional circumstances, that standard is met only in the corporation’s “formal place of incorporation or principal place of business[.]” Id. at 139 n.19.

Based on Daimler , the Palestinian Defendants promptly moved for reconsideration of the district court’s earlier denial of their motion to dismiss for l ack of personal jurisdiction. The district court denied reconsid eration solely on the ground that the Palestinian Defendants had “repeatedly manifested their consent to the Court’s jurisd iction through their conduct,” and so had forfeited their personal jurisdiction objection. J.A. 300– 301. The district court stressed that, in seeking vacatur of the default, the Palestinian Defenda nts had “informe d [the] Court of their ‘seriousness’ and the ‘good faith’ with which they intended to litigate their ‘strong meritorious defenses.’” J.A. 301 (quoting Memorandum in Support of Palestinian Defendants’ Motion to Vacate Cler k’s Entry of Default at 5, J.A. 176; and quoting id. at 40, J.A. 211). The district court added that, although their answer “purportedly preserved the9
personal jurisdiction defense,” the Palestinian Defendants’ August 2013 summary judgment mo tion did not “includ[e] a challenge to personal jurisdiction[ .]” J.A. 301. The district court subsequently denied rec onsideration of that ruling.

In September 2016, the Palestinian Defendants again pressed their personal jurisdic tion defense, arguing in a supplemental brief in support of summary judgme nt that the court should reconsider its forfeiture determination in light of Waldman v. Palestine Liberation Organization , 835 F.3d 317 (2d Cir. 2016).

The district court subse quently granted summary judgment for the Palestinian Defendants. Shatsky v. Palestine Liberation Org. , No. 1:02-cv-02280-RJL, 2017 WL 2666111, at *11 (D.D.C. June 20, 2017). The court first denied reconsideration of its findi ng of personal jurisdiction. Id. at *5–6. The court distinguished Waldman as turning on a change in Second Circuit law that made available in that circuit a new argument against pers onal jurisdiction. Id. at *5. The court held that, by contrast, the argu ment pressed by the Palestinian Defendants had been available to them all along, and so was forfeitable. Id.

On the merits, the court held that the Palestinian Defendants were entitled to summary judgment on the AntiTerrorism Act claims because no reasonable jury could find that they had proximately caused the bombing. Shatsky , 2017 WL 2666111, at *6–10. 2

2 The district court also granted summary judgment on the Families’ common law tort claims, reasoning that under District of Columbia law, the Palestinian Au thority and the PLO were each unincorporated associations that could not be sued in tort. Shatsky

,10
The Families timely move d for reconsideration under Federal Rule of Civil Procedure 59(e), which the district court denied. Shatsky v. Palestine Liberation Org. , 292 F. Supp. 3d 188, 192, 195 (D.D.C. 2017).

The Families timely filed a notice of appeal. F ED

. R. A PP

. P. 4(a)(1)(A), (4)(A)(iv). The Palestinian Defendants did not file a cross-appeal.

II

We first confront the question whether the district court’s grant of summary judgment to the Palestinian Defendants constitutes a final, appealable judgment despite the Families’ earlier decision to voluntarily dismiss their claims against the Syrian Defendants without prej udice. Because the Families were not attempting to circumve nt the statutory limitation on jurisdiction and because the dist rict court remained in full control over the litigation’s progre ss to the dispositive entry of summary judgment, we hold that the district court’s ruling is an appealable final judgment.

A

The district court exercised federal question jurisdiction over the Anti-Terrorism Act claims and supplemental jurisdiction over th e non-federal comm on law claims. See 28 U.S.C. § 1331 (federal question); id. § 1367(a) (supplemental).

Under 28 U.S.C. § 1291, we have jurisdiction to review “final decisions” of the district courts. The district court’s grant of summary judgment in favor of the Palestinian Defendants would certainly be final had they been the only

2017 WL 2666111, at *10–11. Th e Families do not appeal that portion of the district court’s decision.11
defendants all along. But the comp laint also seeks relief from nine Syrian Defendants. In 2005, twelve years before the summary judgment ruling in favor of the Palestinian Defendants, the Families voluntar ily dismissed the claims in their complaint against the Syri an Defendants. The question, then, is whether that voluntary dismissal rendered the district court’s summary judgment orde r non-final. It did not.

A decision is final when it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Blue v. District of Columbia Pub. Sch. , 764 F.3d 11, 15 (D.C. Cir. 2014) (quoting Van Cauwenberghe v. Biard

, 486 U.S. 517, 521–522 (1988)). By contrast, a decision that “resolves some, but not all, of the claims in a complaint * * * is generally non-final and non-appealable.” Dukore v. District of Columbia , 799 F.3d 1137, 1140 (D.C. Cir. 2015). With a handful of exceptions not releva nt here, a party may appeal such a partial disposition onl y with the district court’s permission, pursuant to Federal Ru le of Civil Procedure 54(b). See Dukore , 799 F.3d at 1140.

In Blue , we held that, when a district court enters a partial final judgment as to some but not all parties, a would-be appellant cannot concoct fina lity by agreeing with the remaining defendants to dismiss the claims against them without prejudice, subject to an agreement that would allow revival of those claims after the appeal. 764 F.3d at 14–15. As a result, “party-initiated” dism issals without prejudice are “generally insufficient to render final and appealable a prior order disposing of only part of the case.” Id. at 16–17. That prevents parties from “taki ng over the ‘dispatcher’ function that [Rule 54(b)] vests in the trial judge to control the circumstances and timing of the entry of final judgment.” Blue

, 764 F.3d at 18 (quoting Robinson–Reeder v. American Council on Educ. , 571 F.3d 1333, 1340 (D.C. Cir. 2009)). And12
allowing parties to create their own superficial finality could “generate overlapping lawsuits, piecemeal appeals, and splintered and harassing litigation.” Blue , 764 F.3d at 18.

Put simply, “[p]arties cannot st ipulate their way out of the final judgment rule or Rule 54(b)’s strict limitations.” Dukore

, 799 F.3d at 1141. It is the “distric t court, not the parties,” that must “control[] the terms of di smissal” so as to prevent “manipulation of the courts’ jurisdiction.” Id

. The grant of summary judgment to the Palestinian Defendants in this case was a final, appealable judgment because the earlier dismissal of the Syrian Defendants was neither designed to nor had the ef fect when entered of turning a partial judgment into an artificially final judgment for appeal. Quite the opposite, dismissal of the Syrian Defendants occurred twelve years before summary judgment issued. So the voluntary dismissal plainly did not foreseea bly operate to render that long-into-the-future partial judgment final. Nor was the voluntary dismissal mean t to open the door to an appeal. Instead, its sole functi on was to allow for entry of a default judgment in fa vor of the Families. J.A. 158. Which the Families, of course, would not be appealing.

Also unlike Blue , the voluntary dis missal did not wrest control of the litigation’s finality out of the district court’s hands. The Families filed two ne w lawsuits against the Syrian Defendants, alleging material support of terrorism under the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 et seq. See Shatsky v. Syrian Arab Republic , No. 1:06-cv-00724-RJL (D.D.C.); Shatsky v. Syrian Arab Republic , No. 1:08-cv-00496- RJL (D.D.C). Both cases were assigned to the same district judge who presided ov er this ligation agai nst the Palestinian Defendants. Importantly, the di strict court has remained in control of all three cases’ manage ment and progress, eventually13
deciding to put the lawsuits against the Syrian Defendants on hold pending disposition of this case. J.A. 284–285. So the district court has had the full authority to keep the cases linked if it desired. Instead, the di strict court exercised its broad discretion to keep the cases se parate, and to make the case against the Palestinian Defendants the lead one.

The district court’s intent to conclusively resolve the litigation is also a “significant fact or in the [finality] analysis.” Attias v. Carefirst, Inc. , 865 F.3d 620, 624 (D.C. Cir. 2017). Here, the district court signa led that its summary judgment order was final and appealable—a nd need not await disposition of the Syrian Defendants’ case —by ordering that “judgment is entered for the defendants.” J.A. 116. If more were needed, the district court described the Families’ Rule 59(e) motion to alter or amend the judgment as seeking “post-judgment relief[.]” Shatsky , 292 F. Supp. 3d at 192, 195.

What all of that means is that Blue ’s fundamental concern about parties manufacturing superf icial finality while hijacking the district court’s control over final resolution of the litigation is not a factor in this case. The voluntary dismissal of the Syrian Defendants neither was inte nded to nor had the effect of creating an appealable final j udgment. And importantly, the district court “alone determined when the case was over and its order became final,” and so “fulfilled it s function as ‘gatekeeper for the court of appeals.’” Dukore , 799 F.3d at 1142 (quoting Blue , 764 F.3d at 18).

B

The Palestinian Defendants contend otherwise, arguing that this case and the claims against the Syrian Defendants are “a ‘single judicial un it’ for purposes of a ppellate jurisdiction” because of their “unified orig in and substantial factual and14
legal overlap[.]” Palestinian Defendants’ Br. 4 (quoting Sears, Roebuck & Co. v. Mackey , 351 U.S. 427, 438 (1956)).

That argument might work if the district court had consolidated the cases and “treat[ed] them” such that “they [became] one case for the purpose of appellate jurisdiction.” Blackman , 456 F.3d at 174 n.9 (internal quotation marks omitted). But that is not the path the district court chose. It chose instead to allow the cases to “retain[] their separate identities,” id. , and to proceed on separate procedural paths. When that happens in consolidated cases, a judgment as to all of the claims and parties in one of the cases can be considered final under Section 1291 desp ite the consolidation. See id. Certainly if not all consolidated cases count as a single unit for determining appellate jurisdic tion, then neither should cases that the district court fo rmally keeps separate.

Nor does the presence of Do e defendants named in the complaint pose an obstacle to fi nality. Those defendants were never served, and there is no indi cation that the district court “foresees further proceedings on unresolved claims” against them. See Kaplan v. Central Bank of the Islamic Republic of Iran , 896 F.3d 501, 506–507 (D.C. Cir. 2018).

The long and the short of it is that, “[a]bsent appellate reversal, the federal action [bef ore the district court] is concluded with nothing left to be done.” Dukore , 799 F.3d at 1141–1142. The judgment is final for purposes of 28 U.S.C. § 1291, giving us appellate jurisdiction.

III

Determining the finality of the district court’s judgment does not end our jurisdictiona l inquiry. The Palestinian Defendants argue that the grant of summary judgment can be affirmed on the ground that the di strict court lacked personal15
jurisdiction over them. That question of personal jurisdiction must be resolved “before reaching the merits[.]” Kaplan , 896 F.3d at 511.

The Families responded to the Palestinian Defendants’ personal jurisdiction argument on the merits, without making any argument that the issue was not properly before us in the absence of a cross-appeal. A m onth later, the Families changed course, filing a letter under Fe deral Rule of Appellate Procedure 28(j) arguing that th e absence of a cross-appeal deprives this court of jurisdic tion to consider the Palestinian Defendants’ personal jurisdicti on argument. The Palestinian Defendants respond that the cros s-appeal require ment is not jurisdictional, and that the Families forfeited their procedural objection by failing to raise it in their reply brief.

After navigating through th e parties’ competing procedural objections, we hold that the Palestinian Defendants properly preserved their objecti on to personal jurisdiction in district court, and that circuit precedent squarely forecloses the district court’s exercise of personal jurisdiction.

A

1

Parties who win in the di strict court may advance “alternative bases for affirmance” that are properly raised and supported by the record without filing a cross-a ppeal, even if the district court reje cted the argument. Crocker v. Piedmont Aviation, Inc. , 49 F.3d 735, 741 (D.C. Cir. 1995); see also Jennings v. Stephens , 135 S. Ct. 793, 798 (2015) (“An appellee who does not take a cross-appe al may ‘urge in support of a decree any matter appearing in the record, although his argument may involve an att ack upon the reasoning of the lower court.’”) (quoting United States v. American Ry. Express16

Co. , 265 U.S. 425, 435 (1924)); Ark Initiative v. Tidwell , 816 F.3d 119, 127 (D.C. Cir. 2016).

But parties seeking to press arguments that would change or modify the district court’s judgment to their benefit must cross-appeal. See Jennings , 135 S. Ct. at 798; see also Singh v. George Washington Univ. Sch. of Med. & Health Sciences , 508 F.3d 1097, 1099–1100 (D.C. Cir. 2007) (noting that a party “need not have” cross-appealed because “it sought no change in the final judgment in its favor”); cf. Northwest Airlines, Inc. v. County of Kent , 510 U.S. 355, 364 (1994) (“A crosspetition [for certiorari] is requi red * * * when the respondent seeks to alter the judgment below.”).

When, as in this case, th e district court rejects a defendant’s claim that the cour t lacks personal jurisdiction, but then rules in the defendant’s fa vor on the merits, the defendant generally must take a cross-ap peal to preserve the personal jurisdiction objection. See Spann v. Colonial Village, Inc. , 899 F.2d 24, 32–33 (D.C. Cir. 1990). That is so for two reasons.

First, personal jurisdiction is a “forum objection,” and so can be forfeited “at any stage of a proceeding[,]” including by failing to challenge the district court’s exercise of jurisdiction on appeal. Spann , 899 F.2d at 32–33.

Second, if we conclude that the district court lacked personal jurisdiction, we mu st vacate—not affirm—its judgment on the merits. See Lightfoot v. Cendant Mortg. Corp. , 137 S. Ct 553, 562 (2017) (“ A court must have the power to decide the claim before it (subject-matter jurisdiction) and power over the parties befo re it (personal jurisdiction) before it can resolve a case.”); see also F ED

. R. C IV

. P. 41(b) (providing that a dismissal “for lack of jurisdiction” does not “operate[] as an adjudi cation on the merits”).17
In addition, vacatu r tends to “enlarg[e] [the prevailing party’s] rights” or “lessen[] the rights of [its] adversary[,]” Jennings , 135 S. Ct. at 798, particul arly when the defendant is a repeat player. Cf. Camreta v. Greene , 563 U.S. 692, 701–703 (2011) (recognizing that a part y who prevails on the bottom line may have enough of a “perso nal stake” to challenge an adverse ruling the court made al ong the way). Vacatur for lack of jurisdiction would also depr ive any unfavorable aspects of the district court’s decision of preclusive effect. See California Communities Against Toxics v. EPA , 928 F.3d 1041, 1051– 1052 (D.C. Cir. 2019) (claim a nd issue preclusion apply only when the prior case was before “a court of competent jurisdiction”) (internal quotation marks omitted).

This case illustrates the concern. The Palestinian Defendants have long argued that they cannot be haled into a court of the United States to an swer the Families’ allegations. Given the choice between (i) a pr eclusive determination that such litigation cannot proceed at all, and (ii) a preclusive determination that they can be forced to answer in court but that, as it happens, they are not liable in a particular case, the Palestinian Defendants have am ple reason to prefer and are more broadly benefited by the former. See Kasap v. Folger Nolan Fleming & Douglas, Inc. , 166 F.3d 1243, 1248 (D.C. Cir. 1999) (noting that, “under prin ciples of issu e preclusion,” dismissals for lack of jurisdiction have “preclusive effect on the jurisdictional issue litigated”).

Put another way, affirmance a nd vacatur both mean that the Palestinian Defendants owe the Families nothing in this case. But vacatur would have the added effect of wiping the district court’s exercise of personal jurisdiction off the books, while also precluding any repeat of the litigation unless the jurisdictional situation changes. So vacatur is a modification18
of the judgment that would pr ovide an added benefit to the Palestinian Defendants.

The Palestinian Defendants point to Gilmore v. Palestinian Interim Self-Government Authority , 843 F.3d 958 (D.C. Cir. 2016), in which this court addressed a personal jurisdiction argument as an alternative ground for affirmance without questioning that descri ption or the l ack of a crossappeal, see id. at 963–964. But there wa s no need to address those issues in Gilmore because we rejected the personal jurisdiction argument as forfeited. See id.

For those reasons, the Pale stinian Defendants were required to file a cro ss-appeal to preserve their challenge to the district court’s exercise of pers onal jurisdiction. But as it turns out, their failure to do so is not fatal.

2

The cross-appeal rule is “ unwritten but longstanding[.]” Greenlaw v. United States , 554 U.S. 237, 244 (2008). Yet unlike an original notice of ap peal, “a cross-appeal is not a jurisdictional requirement.” Spann , 899 F.2d at 3 3. That said, we will excuse compliance with the cross-appeal rule only in “exceptional circumstances[.]” Id. at 31–33 (excusing the defendant’s failure to file a cr oss-appeal where it “plainly intended to preserve” its argument, but was reasonably confused about the timeliness of the plaintiffs’ appeal).

Considering all the circumstances of this case in light of the purposes of the cross-appeal rule, we conclude that there are exceptional circumstances wa rranting our consideration of the personal jurisdiction issue. The cross-appeal rule protects two distinct sets of interests: (i) the opposing party’s interests in notice and an adequate opport unity to brief the issue, and (ii) the structural interests in a full adversarial presentation of19
issues designed to unsettle a dist rict court ruling and the finality of judgments. See Greenlaw , 554 U.S. at 243–244 (describing the cross-appeal rule as “both informed by, and illustrative of, the party presentation principle[ ,]” meaning that courts “rely on the parties to frame the issues for decision”); id. at 252 (noting that the rule serves “the interests of the parties and the legal system in fair notice and finality”). 3 In this case, both factors weigh in favor of entertaining the Palestinian Defendants’ personal ju risdiction argument.

First , the Families forfeited any objection based on lack of notice or prejudice to their intere sts by addressing the personal jurisdiction argument on the merits in their reply brief, without any procedural complaint. They did not raise the cross-appeal issue until a post-briefing Rule 28(j) letter, which “comes too late.” Worldwide Moving & Storage, Inc. v. District of Columbia , 445 F.3d 422, 427 n.7 (D.C. Cir. 2006); see Williams v. Romarm, SA , 756 F.3d 777, 787 (D.C. Cir. 2014) (“[T]he 28(j) process should not be employed as a second opportunity to brief an issue not ra ised in the ini tial briefs.”). Nor have they ever claimed prejudice from the Palestinian Defendants’ timing.

Second , the structural interests served by the cross-appeal rule are only weakly implicated here. The rule serves the court’s interest in a full adversarial presentation of those arguments that seek to deprive the district court’s judgment of finality by affording the parties additional opportunities to make their arguments about the issues relevant to the crossappeal. See F ED

. R. A PP

. P. 28.1 (providing for higher word

3 See also El Paso Natural Ga s Co. v. Neztsosie , 526 U.S. 473, 481–482 (1999) (The rule “is meant to protect institutional interests in the orderly functioning of the judicial system, by putting opposing parties and appellate courts on noti ce of the issues to be litigated and encouraging repose of those that are not.”).20
limits and a fourth brief in cross-appeal cases); compare F ED

. R. A PP

. P. 32(a)(7)(B) (ordinary briefing format), with F ED

. R. A PP

. P. 28.1(c) & (e)(2) (cross-appe al briefing format).

The additional airing of the issues that the cross-appeal process enables would not have been helpful here. For starters, the personal jurisdiction issue was fully litigated in the district court, both as to the court’s finding of forfeiture and the underlying merits. The Palestinia n Defendants raised the issue in a motion to dismiss, two moti ons for reconsid eration, and in supplemental briefing on their summary judgment motion. The Families responded each time. And although the district court never reduced its reasoning on th e merits to writing, it twice explained the forfeiture ruling.

The parties also adequate ly briefed the personal jurisdiction issue on appeal, again addres sing both forfeiture and the merits.

As for the ultimate merits, ther e was little for the parties to say or for this court to resolve. The Families and the Palestinian Defendants agree th at existing circuit precedent directly controls the result. See Palestinian Defendants’ Br. 19–20, 23–26; Families’ Reply Br. 12 & n.2; see also Livnat , 851 F.3d at 56–57; Estate of Klieman ex rel. Kesner v. Palestinian Auth. , 923 F.3d 1115, 1123–1126 (D.C. Cir. 2019), petition for cert. filed , No. 19-741 (U.S. Dec. 5, 2019).

All that is really in dispute is the district court’s forfeiture ruling. That is the type of “str aightforward legal question” that satisfies the “extraordinary circumstances” requirement when, as here, “both parties have fully addressed the issue on appeal” and in district court. Lesesne v. Doe , 712 F.3d 584, 588 (D.C. Cir. 2013) (internal quot ation marks omitted).21
The interest in finality also has little force in this unique context, given the parties’ full presentation of the issue before the district court and that cour t’s awareness of our decision in Livnat v. Palestinian Authority , which all agree, in the absence of forfeiture, dictates a findi ng of no personal jurisdiction in this case. For those reasons, this case does not implicate concerns about sandbagging the district court that would ordinarily weigh against ente rtaining a belatedly raised personal jurisdiction argument. See Peterson v. Highland Music, Inc. , 140 F.3d 1313, 1318 (9th Cir. 1998) (suggesting that “deliberate, strategic be havior” like “sandbagging” could justify a finding that a defenda nt forfeited its objection to personal jurisdiction). The most that a notice of cross-appeal would have offered is that the Families would have learned slightly sooner that one additional component of the judgment—beyond the 33 orders al ready identified in their notice of appeal—was in play.

In sum, the Families forfeited their interest in the crossappeal rule; the structural interests that rule ordinarily protects are near their nadir here; and the parties both agree that the personal jurisdiction question is controlled by binding circuit precedent of which the district co urt was fully aware. For those reasons, exceptional circumstances excuse the Palestinian Defendants’ failure to cross-ap peal the question of personal jurisdiction.

B

With the issue properly before us, we review for an abuse of discretion the district cour t’s finding that the Palestinian Defendants forfeited their objection to personal jurisdiction. See Klieman , 923 F.3d at 1120–1123. “A di strict court abuses its discretion when it applies th e wrong legal standard or relies on clearly erroneous fi ndings of fact.” Amador County v.22
United States Dep’t of the Interior , 772 F.3d 901, 903 (D.C. Cir. 2014). “A district court by definition abuses its discretion when it makes an error of law.” Koon v. United States , 518 U.S. 81, 100 (1996). We conclude th at the district court abused its discretion in holding that the Palestinian Defendants forfeited their objection to the ex ercise of personal jurisdiction in this case.

1

While subject-matter jurisdiction is a mandatory prerequisite for a federal court to act, the requirement that the court have personal jurisdiction over a defendant is a personal right that a defendant can choose to assert or not. Insurance Corp. of Ireland v. Compagni e des Bauxites de Guinee , 456 U.S. 694, 702–704 (1982). That means that a personal jurisdiction defense is both forfeitable and waivable. Sickle v. Torres Advanced Enter. Sols., LLC , 884 F.3d 338, 344 (D.C. Cir. 2018).

A defendant forfeits its object ion to personal jurisdiction unless it raises the issue in a pre-answer Rule 12 motion or in a responsive pleading. F ED

. R. C IV

. P. 12(h)(1); see also Gilmore , 843 F.3d at 964. It is undisputed that the Palestinian Defendants complied with that in itial obligation by raising their personal jurisdiction defense in their pre-answer, pre-default motion to dismiss.

The question is whether the Palestinian Defendants’ conduct after the entry of default amounted to forfeiture. It did
not.
To be sure, properly raising an objection to personal jurisdiction at the outset of the case did not immunize the Palestinian Defendants against la ter forfeiting th at objection by their conduct. That is because objections to personal23
jurisdiction “can be waived at any stage of a proceeding.” Spann , 899 F.2d at 32–33. But simply pleading the absence of personal jurisdiction is not a ll that happened here. The Palestinian Defendants also raised personal jurisdiction in a motion to dismiss at the outset of the case and litigated it fully before the district court, which considered and rejected the personal jurisdiction challenge. And when the Palestinian Defendants asked for a written explanation of the ruling, the court denied that too. At that point, nothing in the law required the Palestinian Defendants to continue beating a dead horse. Instead, they could turn to “defend[ing] on the merits in the district court without losing [t heir] right to press on direct review the jurisdictional object ion, along with objections on the merits.” Practical Concepts, Inc. v. Republic of Bolivia

, 811 F.2d 1543, 1547 (D.C. Cir. 1987).

In other words, once the issue is litigated to resolution in the district court, a defendant’s pivot to defending on the merits by itself is an insufficient basi s for inferring abandonment of a personal jurisdiction challenge. Instead, the district court would need to predicate a find ing of forfeiture on specific actions later taken by the defendant that are inconsistent with the good-faith preservation of the defense, such as intentional sandbagging or an express a nd unambiguous renunciation of the claim. See Peterson , 140 F.3d at 1317–1319; Brownlow v. Aman , 740 F.2d 1476, 1483 n.1 (10th Cir. 1984) (holding that moving to dismiss for lack of personal jurisdiction preserves the issue for appeal).

In finding forfeiture, the distri ct court trained its analysis on the Palestinian Defendants’ post-default litigation. The court emphasized, in particular , the Palestinian Defendants’ representation in seeking vacatur of the default that they were now committed to litigating the case on the merits. J.A. 301 (“[T]hese defendants, in asking the Court to vacate their24
intentional default, informed this Court of their ‘seriousness’ and the ‘good faith’ with which they intended to litigate their ‘strong meritorious defenses .’”) (quoting Memorandum in Support of Palestinian Defendant s’ Motion to Vacate Clerk’s Entry of Default, supra , at 5, J.A. 176; and quoting id. at 40, J.A. 211). Against that backdr op, the district court reasoned that defendants who “have par ticipated in litigation for a lengthy period of time and have sought affirmative relief from the [c]ourt” have, in so doing, “m anifested their consent to the [c]ourt’s jurisdicti on through their conduct, ” and have forfeited their personal jurisdiction defense. J.A. 301.

Applying that rule, the district court concluded that even though the Palestinian Defendants included personal jurisdiction as an affirmative defense in their answer, they abandoned that objection and consented to the court’s jurisdiction by first seeking v acatur of the default with a promise to defend on the merits , and then moving for summary judgment “without including a challenge to personal jurisdiction” in th e motion. J.A. 301.

The district court was correct that a defendant cannot preserve a personal jurisdiction de fense by just raising it in an answer, proceeding to engage in substantial litigation on the merits without teeing up the personal jurisdiction issue in a motion, and then resurrecting th e defense only after the case takes an unfavorable turn on the me rits. It would, after all, be “perverse” to allow defendants to “ask[] the court to proceed on the merits, and then, only if the court’s decision is unfavorable, seek[] to re-asser t jurisdictional defenses.” Boulger v. Woods , 917 F.3d 471, 477–478 (6th Cir. 2019).

But what happened procedurally in this case is materially different. The Palestinian Defenda nts did more than just flag personal jurisdiction as a defe nse in their answer. They25
properly filed a motion to dismiss on that basis, fully litigated it, and lost before the district court. The Palestinian Defendants then followed up with a request that the district court explain the basis for its minute-order rejection of their personal jurisdiction defense. Once the district court declined, the Palestinian Defendants got the cl ear message that the court was finished adjudicati ng that issue.

It was in that specific c ontext that the Palestinian Defendants shifted at the defa ult stage and “committed to litigating the case on the merits,” “rather than continuing to rely exclusively on jurisdictional defe nses.” J.A. 182–183 (emphasis added; formatting modified). Hewing to our decision in Practical Concepts , the Palestinian Defendants chose not to stand on their ju risdictional objec tion alone and default, but instead to defe nd on the merits, preserving the already-decided jurisdic tional issue for appeal, see 811 F.2d at 1547.

Even still, the Palestinian Defendants took additional steps to alert the district court and th e Families that they maintained their personal jurisdiction objection. The Palestinian Defendants included personal juri sdiction as an affirmative defense in their answer, which was filed along with the motion to vacate the default. Answer at 2, Shatsky , No. 1:02-cv02280-RJL (D.D.C. Dec. 21, 2007) , ECF No. 77-10. And the motion to vacate advised that, wh ile now focused on addressing the merits, the Palestinian Defendants were not “waiving any of the defenses raised in the ve rified answer.” J.A. 205. Inother words, the Palestinian Defendants embraced the agreeto-disagree approach authorized by Practical Concepts

. Underscoring their efforts to preserve their personal jurisdiction defense, once the Supreme Court’s decision in Daimler armed them with favorable intervening authority, the26

Palestinian Defendants renewed their personal jurisdiction argument. When they did not pr evail in that r ound, they moved for reconsideration or authorizat ion of an interlocutory appeal under 28 U.S.C. § 1292(b).

True, the Palestinian Defenda nts did not raise personal jurisdiction in their summary j udgment motion. It would have been better and fairer to the di strict court and the Families if they had. But the Palestinian Defendants did request reconsideration of the persona l jurisdiction ruling in their supplemental summary judgment briefing after a favorable Second Circuit decision issued, and they had earlier renewed their objection following the Supreme Court’s decision in Daimler

. That pattern documents that the Palestinian Defendants took sufficient steps to preser ve their personal jurisdiction defense. While changing their fo cus to the merits out of respect for the apparent definitiveness of the district court’s adverse ruling, they preserved the argumen t in their answer and twice revived the argument when new au thority might ha ve justified revisiting an otherw ise settled question. 4

The district court read our decision in Democratic Republic of Congo v. FG Hemisphere Associates, LLC , 508

4 See Aly v. Hanzada for Import & Export Co. , 864 F.3d 844, 847–848 (8th Cir. 2017) (after losing motion to dismiss, defendant preserved personal jurisdiction objection by raising it in its answer, even though it was omitted from the defendant’s summary judgment motion); Peterson , 140 F.3d at 1317–1319 (defendants did not forfeit their personal jurisdiction defense by failing to raise it in a summary judgment motion, at the close of the plaintiffs’ case at trial, or in a post-trial motion because the defendants had already moved to dismiss for lack of personal jurisdiction, lost that motion, and filed an answer preserving the defense).27
F.3d 1062 (D.C. Cir. 2007), as holding that personal jurisdiction is forfeited “where a defendant has engaged in extensive post-default litigation without suggesting an infirmity in personal jurisdiction[.]” J.A. 300 (quoting Democratic Republic of Congo , 508 F.3d at 1064). That is true. But that case involved a defendant’s failure to raise a personal jurisdiction objection at all until late in the litigation. As we explained, “defendants should raise [personal jurisdiction] before the court’s and parties’ time is consumed in struggle over the substance of the suit[.]” Id. (emphasis added).

In so holding, Democratic Republic of Congo simply joined a long line of precedent holding that defendants cannot raise personal jurisdiction for the very first time after the litigation is well underway. See Manchester Knitted Fashions, Inc. v. Amalgamated Cotton Garment & Allied Indus. Fund

, 967 F.2d 688, 691–692 (1st Cir. 1992) (defendant litigated a temporary restraining order for about three months before contesting venue for the first time in its answer); Trustees of Central Laborers’ Welfare Fund v. Lowery , 924 F.2d 731, 732 (7th Cir. 1991) (defendants first raised defective service after six years of post-defaul t judgment proceedings); Marcial Ucin, S.A. v. SS Galicia , 723 F.2d 994, 997 (1st Cir. 1983) (defendant appeared, attended thirteen depos itions, and then raised its personal jurisdiction defense for the first time in a motion to dismiss filed four years after its appearance).

At bottom, the district court misstepped when it analyzed forfeiture starting at the middle ra ther than the beginning of the litigation. That led it to a pply the wrong legal standard—one that applies to defendants who do not raise personal jurisdiction at all until after extensive litigation. Here, the Palestinian Defendants’ full litigation of the issue at the outset of the case, preservation of the defense in their answer, and efforts twice to28
seek post-default reconsideration of the district court’s adverse ruling sufficed to preserve the claim.

2

The Families’ three arguments in support of forfeiture fail.

First , the Families argue that the Palestinian Defendants’ personal jurisdiction defense was forfeited because the way they litigated after the default gave the Families “a reasonable expectation that [they would] de fend the suit on the merits,” and they “cause[d] the court to go to some effort that would be wasted if personal jurisdiction is subsequently found lacking.” Families’ Reply Br. 5 (quoting Hedeen Int’l, LLC v. Zing Toys, Inc. , 811 F.3d 904, 906 (7th Cir. 2016)).

That argument repeats the district court’s error: Courts that apply the Families’ test or a similar one do so to determine whether a defendant waited too long to press “the issue by motion[,]” as opposed to merely pleading it as an affirmative defense and otherwise standing silent. See King v. Taylor , 694 F.3d 650, 660–661 (6th Cir. 2012) (internal quotation marks omitted) (defendant forfeited hi s service defense by including it in his answer, participating in the litigation for more than a year, and only then raising it at the summary judgment stage); see also Boulger , 917 F.3d at 477 (applying the “reasonable expectation” test where the de fendant had pleaded personal jurisdiction as an affirmative defense but had not raised it in a motion); Hedeen , 811 F.3d at 906 (addressi ng the time liness of an initial challenge to personal jurisdiction). 5

5 See also H-D Michigan, LLC v. Hellenic Duty Free Shops S.A.

, 694 F.3d 827, 848 (7th Cir. 2012) (“ [A] party may appear and litigate both a personal jurisdiction defense and the merits of a case without waiving the personal jurisdiction defense[.]”); Hamilton v. Atlas29

Second , the Families argue for a categorical rule under which a defendant forfeits its personal jurisdiction defense whenever it “files a dispositive motion on the merits without mentioning its jurisdictional defe nse.” Families’ Reply Br. 6. But none of the cases the Families cite for that rule involved defendants who had already litig ated and lost the personal jurisdiction issue. See Boulger , 917 F.3d at 477 (no earlier motion raising jurisdictional defense); CalMat Co. v. Oldcastle Precast, Inc. , No. 16-26 KG/WPL, 2016 WL 9776555, at *2– 3 (D.N.M. Oct. 5, 2016) (same); Casares v. Agri-Placements Int’l, Inc. , 12 F. Supp. 3d 956, 966 (S.D. Tex. 2014) (same). We have found no such case ei ther. Nor do the Families explain why such a rigid rule of perpetual relitigation should be imposed even after a persona l jurisdiction defense has been fully litigated and reject ed in district court.

Third , relying on Bouchet v. National Urban League, Inc.

, 730 F.2d 799 (D.C. Cir. 1984), th e Families contend that the Palestinian Defendants were requ ired to renew their motion to dismiss after the district court vacated the default because the “motion was denied by minute orde r, which did not create ‘law of the case,’” Families’ Reply Br. 10. Bouchet actually proves the opposite. That case held th at a minute order created law of the case on the issue it “necessarily decided,” but not on a “new issue” that arose later. Id. at 806. So the problem was not that minute orders are unable to create law of the case, but that the law-of-the-case doctrine is tri ggered only when an issue is “expressly addressed” or “m ust have been decided by

Turner, Inc. , 197 F.3d 58, 62–63 (2d Cir. 1999) (finding forfeiture where the defendant pleaded the defe nse, but then participated in pretrial proceedings for four years without moving to dismiss for lack of personal jurisdiction); Continental Bank, N.A. v. Meyer , 10 F.3d 1293, 1296–1297 (7th Cir. 1993) (similar).30
necessary implication[.]” Id. (internal quotation marks omitted). 6

Anyhow, it would make little sense to evaluate a defendant’s diligence in advanc ing its personal jurisdiction defense based on whether the dist rict court explains itself. After all, “ any order or other decision, however designated ,” that does not resolve all claims against all parties and that the district court does not make fi nal under Rule 54(b) “may be revised at any time before the en try of a [final] judgment[.]” F ED

. R. C IV

. P. 54(b) (emphasis added) . So a minute order is open to reconsideration on the sa me terms as a lengthy opinion reaching the same result.

For all of those reasons, we hold that the Palestinian Defendants properly preserved th eir objection to the court’s exercise of personal jurisdicti on for appellate review, and the district court abused its di scretion in holding otherwise. 7

C

The easiest part of this case is the actual merits of the Palestinian Defendants’ objecti on to personal jurisdiction. We review de novo “the district court’s assertion of personal jurisdiction[.]” In re Sealed Case , 932 F.3d 915, 922 (D.C. Cir. 2019) (internal quotation marks om itted). And as the Families

6 Although minute orders bind the parties and can create law of the case, their weight on appeal is necessarily diminished because we are deprived of any insight as to why the district court ruled as it did.

7 This case does not present, and so we do not decide, the question whether a district court’s entry of a default judgment, see F ED

. R. C IV

. P. 55(b)—as opposed to the Clerk’s entry of default as occurred here, see F ED

. R. C IV

. P. 55(a)—would require more vigorous efforts on the part of a defendant to preserve a personal jurisdiction argument.31
admit, binding circuit preceden t answers the question in the Palestinian Defendants’ favor.

There are two forms of personal jurisdiction: “general or all-purpose jurisdiction, a nd specific or conduct-linked jurisdiction.” Klieman , 923 F.3d at 1119 (quoting Daimler

, 571 U.S. at 122). “A court may assert general jurisdiction over foreign corporations to hear a ny and all claims against them when their affiliations with the forum are so continuous and systematic as to render them essentially at home in the forum.” Id. at 1120 (quoting Daimler , 571 U.S. at 127) (formatting modified). “[A]bsent exceptional circumstances,” that means “general jurisdiction will lie onl y where an entity is formally incorporated or maintains its principal place of business.” Id.

Specific jurisdiction, by contra st, requires “a relationship among ‘the defendant, the foru m, and the li tigation.’” Klieman , 923 F.3d at 1120 (quoting Walden v. Fiore , 571 U.S.277, 291 (2014)). Put another way, “the defendant’s suitrelated conduct must create a substantial connection with the forum.” Id. (emphasis omitted) (quoting Walden , 571 U.S. at 284).

1

The Palestinian Authority and the PLO are not subject to general jurisdiction because ne ither one is “at home” in the District of Columbia within the meaning of Daimler

. See 571 U.S. at 139. Livnat was explicit that, because the Palestinian Authority’s “headquarters, offici als, and primary activities are all in the West Bank,” it is “not subject to general jurisdiction in the United States.” 851 F.3d at 56. In Klieman , we reaffirmed that holding as to the Palestinian Authority and extended it to the PLO. 923 F.3d at 1123.32

Klieman also forecloses any argument that either the Palestinian Authority or the PLO could be deemed to haveconsented to jurisdiction, within the meaning of the AntiTerrorism Clarification Act of 2018. 8 The Anti-Terrorism Clarification Act treated “certain conduct” by defendants as consent to general personal jurisdiction, Klieman , 923 F.3d at 1127, such as receiving certain forms of foreign aid, or establishing or maintaining an “office, headquarters, premises, or other facilities or establishm ents within the jurisdiction of the United States” while “benefiting from a waiver or suspension” of the Anti-Terrori sm Act’s prohibitions regarding the PLO. 18 U.S.C. § 2334(e)(1) (2018) (citing 22 U.S.C. § 5202).

Klieman held that neither the Palestinian Authority nor the PLO satisfied any of the Anti-Terrorism Clarification Act’s factual predicates for co nsent to jurisdiction. See 923 F.3d at 1128–1130. Because the Families concede that Klieman controls and have not come forth with any evidence that the facts pertaining to consent have changed in the interim, the Anti-Terrorism Clarification Ac t does not provide a basis for exercising general personal ju risdiction over either the Palestinian Authority or the PLO.

2

Binding circuit precedent likewis e forecloses the exercise of specific personal jurisdiction over the Palestinian Authority and the PLO. The Families argued in district court that specific jurisdiction existed because (i) the Palestinian Authority and the PLO provided material support for terrorism as part of a

8 Pub. L. No. 115-253, § 4(a), 132 Stat. 3183, 3184 (codified at 18 U.S.C. § 2334(e)), repealed by Promoting Security and Justice for Victims of Terrorism Act of 2019, H.R. 1865, 116th Cong., div. J, § 903 (enacted Dec. 20, 2019).33
public relations campaign desi gned to influence the United States’ policy toward Is rael, and (ii) it was foreseeable that the bombing would injure United Stat es citizens because it took place in a neighborhood that visitors and emigrants from the United States were known to frequent.

Livnat rejected that same public-relations theory because the plaintiffs there “failed to li nk th[e] particular attack to the alleged plan to influence opini on and policy in the United States.” 851 F.3d at 56–57; see Klieman , 923 F.3d at 1124 (“ Livnat ’s logic governs here.”). The link missing in those cases is absent here too. The Families do not identify any evidence in the record connecting the Karnei Shomron bombing to the alleged pub lic relations campaign.

Klieman similarly puts the kibosh on the jurisdictional theory that the area was frequented by Americans. Klieman ruled that evidence of “intenti onal targeting” of Americans or some other form of “intentional conduct by the defendant” is needed to “create[] the necessa ry contacts with the forum.” Id. at 1126 (quoting Walden , 571 U.S. at 286). The Families have come forward with no such evidence.

3

Livnat and Klieman would have been the end of the personal jurisdiction story in this case but for an intervening Act of Congress. Three months after oral argument, Congress enacted the Promoting Security and Justice for Victims of Terrorism Act of 2019, H.R. 1865, 116th Cong., div. J, § 903 (enacted Dec. 20, 2019) (“Just ice for Victims Act”).

As relevant here, the Justice for Victims Act provides that the Palestinian Authority and the PLO specifically “shall bedeemed to have consented to personal jurisdiction” in any AntiTerrorism Act suit if they make certain types of payments to34

terrorists or their families “direc tly or indirectly” after April 18, 2020. H.R. 1865, 116th Cong., div. J, § 903(c)(1)(A) (to be codified at 18 U.S.C. § 2334(e)).

The Justice for Victims Act a pplies retroactively to “any case pending on or after August 30, 2016,” H.R. 1865, § 903(d)(2), “regardless of the da te of the occurrence of the act of international terrorism” at issue, id. § 903(c)(1)(A) (to be codified at 18 U.S.C. § 2334(e)(1)).

The Families argue that, after April 18, 2020, the Palestinian Defendants might ma ke the types of payments covered by the Justice for Victim s Act and, in so doing, trigger retroactive consent to personal jurisdiction. On that basis, they request that this court remand the case to the district court to address the implications of this new statute in the first instance.

The Palestinian Defendants dismiss that suggestion as speculative because they might never make covered payments.

The Palestinian Defendants are correct. Perhaps the Justice for Victims Act will at some point create personal jurisdiction over the Palestinian Authority or the PLO. But neither one of them can possibly have ma de any statutorily relevant payments before the jurisdictional trigger even takes effect. The mere pr ospect that they might do so in the future does not create personal jurisdiction now. Cf. Timbisha Shoshone Tribe v. Salazar , 678 F.3d 935, 937–939 (D.C. Cir. 2012) (ordering dismissal for lack of jurisdiction because the plaintiffs lacked standing to sue on behalf of their Tribe, despite pending litigation that mig ht lead to their recognition as the Tribe’s leadership).

Because the Palestinian Defe ndants are not now and were not at the time they were served subject to the district court’s personal jurisdiction, this case must be dismissed without35
prejudice. See Caribbean Broad. Sys., Ltd. v. Cable & Wireless P.L.C. , 148 F.3d 1080, 1091 (D.C. Cir. 1998) (dismissals for lack of personal jurisdiction ar e without prejudice). That dismissal without prejudice wo uld, of course, leave the Families free to refile if new facts establish personal jurisdiction before the stat ute of limitations runs. See Dozier v. Ford Motor Co. , 702 F.2d 1189, 1192 (D.C. Cir. 1983) (dismissals for lack of jurisdic tion are not preclusive where the “jurisdictional deficiency [i s] remedied by occurrences subsequent to the original di smissal”) (emphasis omitted).

IV

In sum, the Palestinian Defendants did not forfeit their personal jurisdiction defense, and the district court abused its discretion in concluding otherwise. Because the district court lacked personal jurisdiction over the defendants, its judgment on the merits cannot stand. We th erefore vacate the district court’s judgment and remand with instructions to dismiss the case without prejudice for lack of jurisdiction.

So ordered.