United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 2019 Decided April 14, 2020 

No. 17-7168 

SHABTAI SCOTT SHATSKY, INDIVIDUALLY AND AS PERSONAL 

REPRESENTATIVE OF THE ESTATE OF KEREN SHATSKY, ET AL., 

APPELLANTS

v. 

PALESTINE LIBERATION ORGANIZATION, ET AL., 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:02-cv-02280) 

Tejinder Singh argued the cause for appellants. 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: HENDERSON, MILLETT, and WILKINS, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge MILLETT. 
2 

MILLETT, Circuit Judge: The American victims of a 2002 

suicide bombing in the West 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 those responsible for the attack. 

Specifically, the Families allege that the Popular Front for the 

Liberation of Palestine (“Popular Front”), a designated foreign 

terrorist organization, orchestrated the 2002 bombing. See

Families’ Response to Palestinian 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 the Palestinian 

Authority and the Palestine Liberation Organization 

(collectively, “the Palestinian Defendants”) liable for the attack 

on the theory that they enabled 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 question 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 Thaler, and Hillel Trattner, along 
3 

with a non-citizen, Ronit Trattner. For the purpose of summary 

judgment only, the parties agree that the bomber was Sadeq 

Ahed Mahmoud Abdel Hafez. Palestinian Defendants’ 

Response to Families’ Reconstituted 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 survivors and their families filed suit against 

(i) the Palestinian Defendants, (ii) Syria and several Syrian 

governmental entities and individuals (“Syrian Defendants”), 

and (iii) 99 Doe defendants. The Families asserted claims 

under the Anti-Terrorism Act, which authorizes “[a]ny national 

of the United States injured in his or her person, property, or 

business by reason of an act of international terrorism, or his or 

her estate, survivors, or heirs,” to sue for 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 Liberation Organization, commonly 

known as the “PLO,” is the international representative of the 

Palestinian people. Families’ Response to Palestinian 

Defendants’ Statement of Material Facts, supra, at 18, ECF 

No. 331 at 76. 

The Popular Front is one of the seven “factions” that make 

up the PLO. J.A. 89. The United States government has 
4 

designated the Popular Front a foreign 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 Liberation of Palestine (and Other 

Aliases) as a Foreign Terrorist Organization, 80 Fed. Reg. 

25,766, 25,766 (May 5, 2015) (maintaining the designation). 

The Families allege that the Popular Front planned and 

carried out the bombing. They contend that the Palestinian 

Defendants facilitated the bombing 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 expenses, including rent for its 

office in the nearby city Qalqilya, 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 Palestinian Defendants in July 

2003. 

Two months later, the Syrian Defendants and the 

Palestinian Defendants jointly moved for a protective order to 

prevent the Families from moving 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 asserted 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[.]” 

FED. R. CIV. P. 55(a). Once the Clerk does so, the plaintiff may 

“apply to the court for a default judgment” under Rule 55(b). 

FED. R. CIV. P. 55(b)(2). 

The Palestinian Defendants then moved to strike that 

default and requested additional time to respond to the 

complaint. While those motions were still pending, the 

Palestinian Defendants moved to dismiss the complaint under 

Federal Rule of Civil Procedure 12(b), asserting among other 

things sovereign and governmental immunity and lack of 

personal jurisdiction. As for 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 protective 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 requested an explanation, but the 
6 

district court declined to provide one. The Palestinian 

Defendants then informed the court that they planned to rest 

their defense entirely on jurisdiction 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 participate 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 litigation. The district court denied 

the motion as moot in a May 30, 2006 minute order. 

Almost a year later, the Families 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 jurisdiction 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[.]” FED. R. CIV. 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 Defendants 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 told 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 here, raised lack of personal 

jurisdiction as an affirmative defense. The Palestinian 

Defendants’ brief in support of vacating the default “confined 

their discussion” of the “meritorious defense” requirement for 

vacatur “to [the Palestinian Defendants’] lack of 

responsibility” for the bombing. 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 verified 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”—the court was “now convinced 

that [the Palestinian Defendants are] truly committed to 
8 

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 exercise general jurisdiction over a 

nonresident corporation only if the 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 lack of personal jurisdiction. The 

district court denied reconsideration solely on the ground that 

the Palestinian Defendants had “repeatedly manifested their 

consent to the Court’s jurisdiction 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 Defendants had “informed [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 Clerk’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 the 
9 

personal jurisdiction defense,” the Palestinian Defendants’ 

August 2013 summary judgment motion did not “includ[e] a 

challenge to personal jurisdiction[.]” J.A. 301. The district 

court subsequently denied reconsideration of that ruling. 

In September 2016, the Palestinian Defendants again 

pressed their personal jurisdiction defense, arguing in a 

supplemental brief in support of summary judgment 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 subsequently 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 finding 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 personal jurisdiction. Id. at *5. The court 

held that, by contrast, the argument 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 Authority and the PLO were each 

unincorporated associations that could not be sued in tort. Shatsky, 
10 

The Families timely moved 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. FED. R. APP.

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 prejudice. Because the Families 

were not attempting to circumvent the statutory limitation on 

jurisdiction and because the district court remained in full 

control over the litigation’s progress 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 the non-federal common 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. The Families do not appeal that 

portion of the district court’s decision. 
11 

defendants all along. But the complaint also seeks relief from 

nine Syrian Defendants. In 2005, twelve years before the 

summary judgment ruling in favor of the Palestinian 

Defendants, the Families voluntarily dismissed the claims in 

their complaint against the Syrian Defendants. The question, 

then, is whether that voluntary dismissal rendered the district 

court’s summary judgment order 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 relevant here, a party may appeal 

such a partial disposition only with the district court’s 

permission, pursuant to Federal Rule 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 finality 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” dismissals 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 “taking 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)). And 
12 

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 stipulate their way out of the 

final judgment rule or Rule 54(b)’s strict limitations.” Dukore, 

799 F.3d at 1141. It is the “district court, not the parties,” that 

must “control[] the terms of dismissal” 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 effect 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 foreseeably operate to 

render that long-into-the-future partial judgment final. Nor 

was the voluntary dismissal meant to open the door to an 

appeal. Instead, its sole function was to allow for entry of a 

default judgment in favor of the Families. J.A. 158. Which the 

Families, of course, would not be appealing. 

Also unlike Blue, the voluntary dismissal did not wrest 

control of the litigation’s finality out of the district court’s 

hands. The Families filed two new 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 over this ligation against the Palestinian 

Defendants. Importantly, the district court has remained in 

control of all three cases’ management and progress, eventually 
13 

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 district court exercised its broad 

discretion to keep the cases separate, 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 factor in the [finality] analysis.” 

Attias v. Carefirst, Inc., 865 F.3d 620, 624 (D.C. Cir. 2017). 

Here, the district court signaled that its summary judgment 

order was final and appealable—and 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 superficial 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 intended to nor had the effect of 

creating an appealable final judgment. And importantly, the 

district court “alone determined when the case was over and its 

order became final,” and so “fulfilled its 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 unit’ for purposes of appellate jurisdiction” 

because of their “unified origin and substantial factual and 
14 

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 despite the consolidation. See id. 

Certainly if not all consolidated cases count as a single unit for 

determining appellate jurisdiction, then neither should cases 

that the district court formally keeps separate. 

Nor does the presence of Doe defendants named in the 

complaint pose an obstacle to finality. Those defendants were 

never served, and there is no indication 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 [before 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 jurisdictional inquiry. The Palestinian 

Defendants argue that the grant of summary judgment can be 

affirmed on the ground that the district court lacked personal 
15 

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 month later, the Families changed 

course, filing a letter under Federal Rule of Appellate 

Procedure 28(j) arguing that the absence of a cross-appeal 

deprives this court of jurisdiction to consider the Palestinian 

Defendants’ personal jurisdiction argument. The Palestinian 

Defendants respond that the cross-appeal requirement is not 

jurisdictional, and that the Families forfeited their procedural 

objection by failing to raise it in their reply brief. 

After navigating through the parties’ competing 

procedural objections, we hold that the Palestinian Defendants 

properly preserved their objection 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 district court may advance 

“alternative bases for affirmance” that are properly raised and 

supported by the record without filing a cross-appeal, even if 

the district court rejected 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-appeal may ‘urge in support of a 

decree any matter appearing in the record, although his 

argument may involve an attack upon the reasoning of the 

lower court.’”) (quoting United States v. American Ry. Express 
16 

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 required * * * when the respondent 

seeks to alter the judgment below.”). 

When, as in this case, the district court rejects a 

defendant’s claim that the court lacks personal jurisdiction, but 

then rules in the defendant’s favor on the merits, the defendant 

generally must take a cross-appeal 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 must 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 before it (personal jurisdiction) 

before it can resolve a case.”); see also FED. R. CIV. P. 41(b) 

(providing that a dismissal “for lack of jurisdiction” does not 

“operate[] as an adjudication on the merits”). 
17 

In addition, vacatur tends to “enlarg[e] [the prevailing 

party’s] rights” or “lessen[] the rights of [its] adversary[,]” 

Jennings, 135 S. Ct. at 798, particularly when the defendant is 

a repeat player. Cf. Camreta v. Greene, 563 U.S. 692, 701–703 

(2011) (recognizing that a party who prevails on the bottom 

line may have enough of a “personal stake” to challenge an 

adverse ruling the court made along the way). Vacatur for lack 

of jurisdiction would also deprive 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 and 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 answer the Families’ allegations. 

Given the choice between (i) a preclusive 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 ample 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 principles of issue preclusion,” 

dismissals for lack of jurisdiction have “preclusive effect on the 

jurisdictional issue litigated”). 

Put another way, affirmance and 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 modification 
18 

of the judgment that would provide 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 description or the lack of a crossappeal, see id. at 963–964. But there was no need to address 

those issues in Gilmore because we rejected the personal 

jurisdiction argument as forfeited. See id. 

For those reasons, the Palestinian Defendants were 

required to file a cross-appeal to preserve their challenge to the 

district court’s exercise of personal 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 appeal, “a cross-appeal is not a 

jurisdictional requirement.” Spann, 899 F.2d at 33. 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 cross-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 warranting 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 opportunity to brief the issue, and 

(ii) the structural interests in a full adversarial presentation of 
19 

issues designed to unsettle a district 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 jurisdiction argument. 

First, the Families forfeited any objection based on lack of 

notice or prejudice to their interests 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 raised in the initial 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 FED. R. APP. P. 28.1 (providing for higher word 

3 See also El Paso Natural Gas 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 notice 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 FED.

R. APP. P. 32(a)(7)(B) (ordinary briefing format), with FED. R.

APP. P. 28.1(c) & (e)(2) (cross-appeal 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 Palestinian Defendants raised the issue 

in a motion to dismiss, two motions for reconsideration, and in 

supplemental briefing on their summary judgment motion. The 

Families responded each time. And although the district court 

never reduced its reasoning on the merits to writing, it twice 

explained the forfeiture ruling. 

The parties also adequately briefed the personal 

jurisdiction issue on appeal, again addressing both forfeiture 

and the merits. 

As for the ultimate merits, there was little for the parties to 

say or for this court to resolve. The Families and the 

Palestinian Defendants agree that 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 “straightforward 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 quotation 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 court’s awareness of our decision in 

Livnat v. Palestinian Authority, which all agree, in the absence 

of forfeiture, dictates a finding 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 entertaining a belatedly raised 

personal jurisdiction argument. See Peterson v. Highland 

Music, Inc., 140 F.3d 1313, 1318 (9th Cir. 1998) (suggesting 

that “deliberate, strategic behavior” like “sandbagging” could 

justify a finding that a defendant 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 already 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 court was fully aware. For those 

reasons, exceptional circumstances excuse the Palestinian 

Defendants’ failure to cross-appeal the question of personal 

jurisdiction. 

B 

With the issue properly before us, we review for an abuse 

of discretion the district court’s finding that the Palestinian 

Defendants forfeited their objection to personal jurisdiction. 

See Klieman, 923 F.3d at 1120–1123. “A district court abuses 

its discretion when it applies the wrong legal standard or relies 

on clearly erroneous findings 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 that the district court abused 

its discretion in holding that the Palestinian Defendants 

forfeited their objection to the exercise 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. Compagnie 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 objection to personal jurisdiction 

unless it raises the issue in a pre-answer Rule 12 motion or in 

a responsive pleading. FED. R. CIV. P. 12(h)(1); see also 

Gilmore, 843 F.3d at 964. It is undisputed that the Palestinian 

Defendants complied with that initial 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 later forfeiting that objection by 

their conduct. That is because objections to personal 
23 

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 all 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 [their] right to press on direct 

review the jurisdictional objection, 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 basis for inferring abandonment of a 

personal jurisdiction challenge. Instead, the district court 

would need to predicate a finding 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 and 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 district 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 their 
24 

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 Defendants’ Motion to Vacate Clerk’s 

Entry of Default, supra, at 5, J.A. 176; and quoting id. at 40, 

J.A. 211). Against that backdrop, the district court reasoned 

that defendants who “have participated in litigation for a 

lengthy period of time and have sought affirmative relief from 

the [c]ourt” have, in so doing, “manifested their consent to the 

[c]ourt’s jurisdiction 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 vacatur 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 the motion. J.A. 301. 

The district court was correct that a defendant cannot 

preserve a personal jurisdiction defense 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 the defense only after the case 

takes an unfavorable turn on the merits. 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-assert 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 Defendants did more than just flag 

personal jurisdiction as a defense in their answer. They 
25 

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 clear message that the court was 

finished adjudicating that issue. 

It was in that specific context that the Palestinian 

Defendants shifted at the default stage and “committed to 

litigating the case on the merits,” “rather than continuing to rely 

exclusively on jurisdictional defenses.” J.A. 182–183 

(emphasis added; formatting modified). Hewing to our 

decision in Practical Concepts, the Palestinian Defendants 

chose not to stand on their jurisdictional objection alone and 

default, but instead to defend on the merits, preserving the 

already-decided jurisdictional issue for appeal, see 811 F.2d at 

1547. 

Even still, the Palestinian Defendants took additional steps 

to alert the district court and the Families that they maintained 

their personal jurisdiction objection. The Palestinian 

Defendants included personal jurisdiction 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, while now focused on addressing 

the merits, the Palestinian Defendants were not “waiving any 

of the defenses raised in the verified answer.” J.A. 205. In 

other 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, the 
26 

Palestinian Defendants renewed their personal jurisdiction 

argument. When they did not prevail in that round, they moved 

for reconsideration or authorization of an interlocutory appeal 

under 28 U.S.C. § 1292(b). 

True, the Palestinian Defendants did not raise personal 

jurisdiction in their summary judgment motion. It would have 

been better and fairer to the district court and the Families if 

they had. But the Palestinian Defendants did request 

reconsideration of the personal 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 preserve their personal jurisdiction 

defense. While changing their focus to the merits out of respect 

for the apparent definitiveness of the district court’s adverse 

ruling, they preserved the argument in their answer and twice 

revived the argument when new authority might have justified 

revisiting an otherwise 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-default judgment proceedings); Marcial Ucin, 

S.A. v. SS Galicia, 723 F.2d 994, 997 (1st Cir. 1983) (defendant 

appeared, attended thirteen depositions, 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 rather than the beginning of the 

litigation. That led it to apply 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 to 
28 

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] defend 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 his 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 defendant had pleaded personal 

jurisdiction as an affirmative defense but had not raised it in a 

motion); Hedeen, 811 F.3d at 906 (addressing the timeliness 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. Atlas 
29 

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 defense.” Families’ Reply Br. 6. 

But none of the cases the Families cite for that rule involved 

defendants who had already litigated 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 either. Nor do the Families 

explain why such a rigid rule of perpetual relitigation should 

be imposed even after a personal jurisdiction defense has been 

fully litigated and rejected in district court. 

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

730 F.2d 799 (D.C. Cir. 1984), the Families contend that the 

Palestinian Defendants were required to renew their motion to 

dismiss after the district court vacated the default because the 

“motion was denied by minute order, which did not create ‘law 

of the case,’” Families’ Reply Br. 10. Bouchet actually proves 

the opposite. That case held that 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 triggered only when an issue is 

“expressly addressed” or “must have been decided by 

Turner, Inc., 197 F.3d 58, 62–63 (2d Cir. 1999) (finding forfeiture 

where the defendant pleaded the defense, 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 advancing its personal jurisdiction 

defense based on whether the district 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 final under Rule 54(b) “may be 

revised at any time before the entry of a [final] judgment[.]” 

FED. R. CIV. P. 54(b) (emphasis added). So a minute order is 

open to reconsideration on the same terms as a lengthy opinion 

reaching the same result. 

For all of those reasons, we hold that the Palestinian 

Defendants properly preserved their objection to the court’s 

exercise of personal jurisdiction for appellate review, and the 

district court abused its discretion in holding otherwise.7

C 

The easiest part of this case is the actual merits of the 

Palestinian Defendants’ objection 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 omitted). 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 

FED. R. CIV. P. 55(b)—as opposed to the Clerk’s entry of default as 

occurred here, see FED. R. CIV. P. 55(a)—would require more 

vigorous efforts on the part of a defendant to preserve a personal 

jurisdiction argument. 
31 

admit, binding circuit precedent answers the question in the 

Palestinian Defendants’ favor. 

There are two forms of personal jurisdiction: “general or 

all-purpose jurisdiction, and 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 any 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 only where an entity is formally 

incorporated or maintains its principal place of business.” Id.

Specific jurisdiction, by contrast, requires “a relationship 

among ‘the defendant, the forum, and the litigation.’” 

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 neither 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, officials, 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 have 

consented 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 establishments within the jurisdiction of 

the United States” while “benefiting from a waiver or 

suspension” of the Anti-Terrorism 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 consent 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 Act does not provide a basis for 

exercising general personal jurisdiction over either the 

Palestinian Authority or the PLO. 

2 

Binding circuit precedent likewise 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 designed to influence the United 

States’ policy toward Israel, and (ii) it was foreseeable that the 

bombing would injure United States 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 link th[e] particular attack to the 

alleged plan to influence opinion 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 public relations campaign. 

Klieman similarly puts the kibosh on the jurisdictional 

theory that the area was frequented by Americans. Klieman 

ruled that evidence of “intentional targeting” of Americans or 

some other form of “intentional conduct by the defendant” is 

needed to “create[] the necessary 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) (“Justice for Victims Act”). 

As relevant here, the Justice for Victims Act provides that 

the Palestinian Authority and the PLO specifically “shall be 

deemed to have consented to personal jurisdiction” in any AntiTerrorism Act suit if they make certain types of payments to 
34 

terrorists or their families “directly 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 applies retroactively to “any 

case pending on or after August 30, 2016,” H.R. 1865, 

§ 903(d)(2), “regardless of the date 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 make the types of payments 

covered by the Justice for Victims 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 made any statutorily 

relevant payments before the jurisdictional trigger even takes 

effect. The mere prospect 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 might lead to their recognition 

as the Tribe’s leadership). 

Because the Palestinian Defendants 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 without 
35 

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 are without prejudice). That 

dismissal without prejudice would, of course, leave the 

Families free to refile if new facts establish personal 

jurisdiction before the statute of limitations runs. See Dozier v. 

Ford Motor Co., 702 F.2d 1189, 1192 (D.C. Cir. 1983) 

(dismissals for lack of jurisdiction are not preclusive where the 

“jurisdictional deficiency [is] remedied by occurrences 

subsequent to the original dismissal”) (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 therefore vacate the district 

court’s judgment and remand with instructions to dismiss the 

case without prejudice for lack of jurisdiction. 

So ordered.