author: GRIFFITH, Circuit Judge:

text:
    Rivka LIVNAT, Individually and as Personal Representative of the Estate of Ben-Yosef Livnat, et al., Appellants v. PALESTINIAN AUTHORITY, a/k/a The Palestinian Interim Self-Government Authority, Appellee
    No. 15-7024 Consolidated with 15-7025
    United States Court of Appeals, District of Columbia Circuit.
    Argued September 14, 2016
    Decided March 24, 2017

      Jessica P. Weber, Baltimore, MD, argued the cause for appellants. With her on the briefs were Andrew D. Levy and Alan I. Baron, Washington, DC.
    Peter Raven-Hansen, Philadelphia, PA, and David A. Reiser, Washington, DC, were on the brief for amici curiae Former Federal Law Enforcement Officials in support of appellants.
    Mitchell R. Berger, Washington, DC, argued the cause for appellee. With him on the brief were Pierre H. Bergeron, Cincinnati, OH, John Burlingame, Alexandra E. Chopin, and Gassan A. Baloul, Washington, DC.
    Before: GRIFFITH and WILKINS, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
   GRIFFITH, Circuit Judge:

In 2011, Jewish worshippers were shot by armed gunmen at Joseph’s Tomb, a holy site in the West Bank believed by many to be the burial place of the biblical patriarch. Among the victims were Ben-Yosef Livnat, who .was killed, and U.S. citizens Yitzhak Safra and Natan Safra, who were wounded in the gunfire. The Livnat and Safra families brought suit in federal district court seeking to hold the Palestinian Authority vicariously liable for the attack. For the reasons set forth below, we conclude that the suits may not be brought in the courts of the United States.

I

According to the Livnats and Safras, the perpetrators of the attack were the security guards hired to protect Joseph’s Tomb by the Palestinian Authority. The Palestinian Authority is a government headquartered in the West Bank city of Ramallah. Established following the 1993 Oslo Accords between Israel and the Palestine Liberation Organization, the Palestinian Authority administers civilian and internal security services in parts of the West Bank and the Gaza Strip. External security remains within Israel’s .control. See Interim Agreement on the West Bank and the Gaza Strip, Isr.-P.L.O., art. X, Sept. 28, 1995, 36 I.L.M. 551, 561 [hereinafter Oslo II]. The Oslo Accords also circumscribe the Palestinian Authority’s “powers and responsibilities in the sphere of foreign relations.” Id. art. IX, 36 I.L.M. at 561. The Palestinian Authority has non-member observer status in the United Nations and receives foreign aid from the United States, the European Union, and other sources. The United States does not recognize the Palestinian Authority as a government of a sovereign state.

The families allege that the guards who perpetrated the attack at Joseph’s Tomb were acting within the scope of their employment by the Palestinian Authority, which knew that the commander of the guards had served time in Israeli prison on terrorism-related charges. The families claim that the attack was directed at the United States as “part and parcel of’ the Palestinian Authority’s “general practice of using terrorism to influence United States public opinion and policy.” Compl. at 5, Livnat v. Palestinian Auth., No. 1:14-cv-00668 (D.D.C. Apr. 21, 2014); Compl. at 3, Safra v. Palestinian Auth., No. 1:14-cv-00669 (D.D.C. Apr. 21, 2014).

The Livnats and Safras filed identical lawsuits against the Palestinian Authority in federal district court, bringing claims under both the Antiterrorism Act, 18 U.S.C. § 2333, and common-law tort. The Palestinian Authority moved to dismiss for lack of personal jurisdiction, among other grounds. The families opposed and filed cross-motions for leave to take jurisdictional discovery. The court denied the families’ cross-motions for jurisdictional discovery, reasoning that their proposed discovery would have been futile, and granted the motions to dismiss.

The district court addressed the issue of personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2), concluding that the Livnats and Safras had forfeited all other statutory bases for personal jurisdiction. Livnat v. Palestinian Auth., 82 F.Supp.3d 19, 24-25 & n.9 (D.D.C. 2015); Safra v. Palestinian Auth., 82 F.Supp.3d 37, 43 & n.8 (D.D.C. 2015). Rule 4(k)(2) permits a federal court to exercise personal jurisdiction if the claim arises 'under federal law, process was properly served, the defendant is not subject to jurisdiction in any state court of general jurisdiction, and — the requirement at issue here — jurisdiction “is consistent with the United States Constitution and laws.” Fed. R. Civ. P. 4(k)(2). The district court held that this last requirement was not met. Applying the Due Process Clause of the Fifth Amendment, the court found that the Palestinian Authority was not “at home” in the United States and that the attack was not sufficiently directed at the United States.

The Livnats and Safras timely appealed, and their cases are consolidated here. We have jurisdiction under 28 U.S.C. § 1291. In both cases, we review de novo the district court’s dismissal for lack of personal jurisdiction, and we review for abuse of discretion the denial of jurisdictional discovery. FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir. 2008).

II

The question before us is whether the Fifth Amendment’s Due Process Clause permits personal jurisdiction oveh the Palestinian Authority in these disputes. We begin with the contention by the Livnats and Safras that the Clause imposes no limits at all on personal jurisdiction over the Palestinian Authority.

A

In International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court gave the now-canonical explanation of what “due process requires” before a defendant outside a forum’s borders may be subject to suit: the defendant must “have certain minimum contacts with [the forum] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. at 316, 66 S.Ct. 154 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). Accordingly, we have explained that the Fifth Amendment’s Due Process Clause protects defendants from “being subject to the binding judgments of a forum with which [they have] established no meaningful contacts, ties, or relations,” and requires “fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign.” Mwani v. bin Laden, 417 F.3d 1, 11 (D.C. Cir. 2005) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).

This general rule, however, has a few narrow exceptions. Constitutional limits on the personal jurisdiction of the courts do not protect entities that are not covered by the Due Process Clause, and the language of the Clause speaks only of “persons.” U.S. Const, amend. V (“No person shall ... be deprived of life, liberty, or property, without due process of law....”). The Supreme Court held in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966), that States of the Union are not “persons” under the Clause. Id. at 323-24, 86 S.Ct. 803. And we held in Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002), that neither are foreign states. Id. at 96.

Nor is the Palestinian Authority, according to the appellants, who urge us to extend Price to the Palestinian Authority by holding that Price applies not just to sovereign foreign states, but to any foreign entity that “functions as a government.” Appellants’ Br. 19.

We reject appellants’ reading of Price. To begin with, Price represents a rare exception to the general rule that the Due Process Clause protects all litigants in our courts, especially by limiting the power of courts to hale defendants before them. We are reluctant to undermine this general rule by widening the Price exception. Indeed, we have previously assumed that Price is narrower than the appellants maintain, understanding its holding to be that “foreign sovereigns ... are not ‘persons’ under the Fifth Amendment’s Due Process Clause.” GSS Grp. Ltd. v. Nat’l Port Auth., 680 F.3d 805, 809 (D.C. Cir. 2012) (emphasis added); see also id. at 813 (describing Price’s reasoning as “put[ting] foreign sovereigns in a separate constitutional category from ‘private entities’ ” (emphasis added) (quoting Price, 294 F.3d at 98)).

We confirm that measured interpretation of Price today. The rule in Price — that foreign states are not “persons” under the Due Process Clause — applies only to sovereign foreign states. Nothing in Price, other precedent, or the appellants’ arguments compels us to extend the rule in Price to all foreign government entities. And no party here argues that the Palestinian Authority is a sovereign foreign state.

B

In Price, we held that the federal courts had personal jurisdiction over Libya despite its lack of “minimum contacts” with the United States, because “foreign states are not ‘persons’ protected by the Fifth Amendment.” 294 F.3d at 96. We reached this conclusion for two principal reasons. First, in light of Katzenbach’s holding that States of the Union are not “persons” under the Due Process Clause, we decided that foreign states are similarly situated. Id. at 96-97. Observing that “in common usage, the term ‘person’ does not include the sovereign,” id. at 96 (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)), and that “person” in the Due Process Clause had already been interpreted to exclude States of the Unión, we asked whether there was any “compelling reason to treat foreign sovereigns more favorably,” id. We could identify none, because if anything the Constitution treats foreign sovereigns less favorably. The States of the Union “derive important benefits” from the Constitution (such as protection against invasion, U.S. Const, art IV, § 4) in exchange for “abidfing] by significant limitations” (such as the supremacy of federal law, U.S. Const, art. VI, cl. 2). Price, 294 F.3d at 96. By contrast, foreign states “are entirely alien to our constitutional system,” and the Constitution neither confers benefits nor imposes limitations as it does for States of the Union. Id. at 97, 99. We concluded that “it would be highly incongruous to afford greater Fifth Amendment rights to foreign nations” than to States of the Union. Id. at 96.

Second, we explained that foreign statés, as “the juridical equals of the government that seeks to assert jurisdiction over them,” can rely on “mechanisms in the international arena,” instead of domestic law, to protect themselves. Id. at 98. Therefore, foreign states can rely on those other protections against U.S. government power, and do not need the Due Process Clause. Id. at 97-99.

We also mentioned that it was “worth noting” that “serious practical problems might arise” if foreign states enjoyed due-process rights. Id. at 99. For example, foreign states might challenge economic sanctions as violations of due process. Id. We avoided such problems by holding that the Due Process Clause does not protect foreign states.

The appellants contend that Price’s reasoning applies equally in this case. But in Price, we had a particular type of entity in mind. When addressing whether the Due Process Clause applies to “foreign states,” we used that term interchangeably with foreign “nations,” “governments,” and “sovereigns.” See id. at 95-100. Libya was a “sovereign nation” fairly described by all of those terms. Id. at 98. This case is different. Both parties acknowledge that the Palestinian Authority is not recognized by the United States as a government of a sovereign state. And the appellants — even though they seek to apply Price’s, holding here — concede that the Palestinian Authority is not sovereign in “law” or “fact,” apparently referring to the Palestinian Authority’s limited powers and incomplete independence from Israel. Appellants’ Br. 17 & n.3 (citing Ungar v. Palestine Liberation Org., 402 F.3d 274 (1st Cir. 2005), which held that the “reserved powers” that Israel retained under the Oslo Accords “are incompatible with the notion that the [Palestinian Authority] had independent governmental control over the defined territory,” and therefore the Palestinian Authority was not a foreign “state” entitled to sovereign immunity, id. at 291). The question, then, is whether Price’s rationales depended on the fact that Libya was sovereign, or whether they extend to any foreign government entity, even if not recognized as sovereign by the United States and potentially lacking ultimate, independent governing authority in key respects.

We think the former is correct: Price’s primary rationales hinge on sovereignty. First, Price’s rationale that foreign states have the same status as States of the Union under the Due Process Clause is based on the notion that both are sovereign. Indeed, our whole discussion of foreign states and States of the Union was a comparison of two sets of sovereign entities. After all, we started that discussion by observing that “in common usage, the term ‘person’ does not include the sovereign.” Id. at 96 (quoting Will, 491 U.S. at 64, 109 S.Ct. 2304). The analysis that followed that observation considered whether the settled law that the term “person” in the Due Process Clause excludes one set of sovereigns — States of the Union— meant that the term also excluded another set of sovereigns — foreign states. And in considering that question, we compared how the Constitution governs States of the Union and foreign states with respect to attributes of sovereignty like sovereign immunity, territorial security, and judicial power. Id. at 96, 99. These are attributes that non-sovereign foreign governments might lack — for instance, the Palestinian Authority lacks power to secure its territory against external threats. See Oslo II, art. X, 36 I.L.M. at 561. Thus, in Price, we compared foreign states and States of the Union not as run-of-the-mill entities, or even just as governments, but rather as sovereigns.

Ignoring the underlying premise that States of the Union and foreign states are both sovereigns, the appellants instead focus on a different aspect of Price’s comparison of the two. They note that Price described foreign states, unlike States of the Union, as “alien to our constitutional system,” 294 F.3d at 96, and argue that Price’s rule for foreign states must also apply to non-sovereign foreign governments because they are also “alien.”

That is wrong several times over. For one, we have already rejected the notion that “alien” entities are disqualified from due-process protection. “Both the Supreme Court and this court have repeatedly held that foreign corporations may invoke due process protections to challenge the exercise of personal jurisdiction ovei them,” even though those entities are “just as ‘alien to our constitutional system’ as the Libyan government was in Price.” GSS, 680 F.3d at 813 (quoting Price, 294 F.3d at 96). Furthermore, “alien” status became relevant in Price only after we began comparing foreign states to States of the Union. Once we recognized that foreign states were comparable to States of the Union in that both are sovereign, we considered whether there was any “compelling reason to treat foreign sovereigns more favorably.” 294 F.3d at 96. Because foreign states are “alien to our constitutional system” while the States are “integral” to the “Constitution’s infrastructure,” we found implausible the notion that the Constitution would treat foreign states more favorably. Id. But for entities that are not sovereign, the initial analogy to States of the Union never gets off the ground; whether they are “alien” does not matter.

Price’s, second rationale, that international mechanisms displace domestic law for foreign states, also does not work for non-sovereign entities. Comity and international law “set the terms by which sovereigns relate to one another.” Id. at 98 (emphasis added). By contrast, an entity that is not the “juridical equal” of the United States — such as a non-sovereign— lacks the “panoply of mechanisms in the international arena” that a sovereign state like Libya can use to resolve disputes with the United States. Id. Significantly, direct dispute-resolution mechanisms are generally available only to entities that are juridical equals in the eyes of the United States, because political recognition “is a precondition of regular diplomatic relations.” Zivotofsky v. Kerry, — U.S. -, 135 S.Ct. 2076, 2084, 192 L.Ed.2d 83 (2015). Moreover, further underscoring that Price’s rationale depends on sovereignty, the United States recognizes special privileges, based on comity and international-law principles, for sovereigns alone. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-09, 84 S.Ct. 923, 11 L.Ed.2d 804 (1964) (“Under principles of comity governing this country’s relations with other nations, sovereign states are allowed to sue in the courts of the United States.”); id. at 401, 84 S.Ct. 923 (describing the “act of state doctrine,” which “precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory”); F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004) (“[T]his Court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations.”); cf. Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 et seq.

To be sure, even non-sovereigns can participate in some forms of international relations. But that participation is limited. See 1 Oppenheim’s International Law § 35 (9th ed. 2008) (recognizing that “there is no doubt” that non-sovereign entities “cannot be full, perfect, and normal subjects of international law”); James Crawford, Brownlie’s Principles of Public International Law 448 (8th ed. 2012) (explaining that “sovereignty” includes a state’s “capacity to act on. the international plane, representing that territory and its people”); Louis Heniun et al., International Law 241-42 (3d ed. 1993) (“[Djespite the dogma that only sovereign states could be subjects of international law, many other entities” can be “regarded as international legal persons for certain purposes and in some respects,” but “these developments should not obscure the primary and predominant role of the state as the subject of international law.” (emphasis added)). Because they lack the full range of rights and obligations that sovereigns have under international law, non-sovereigns — unlike the defendant in Price — cannot rely on comity and international-law protections to the exclusion of domestic law.

Finally, Price’s concern that recognizing due-process rights might pose “practical problems,” 294 F.3d at 99, does not change our conclusion that Price’s holding applies to sovereigns alone. The appellants argue that problems might arise if non-sovereigns raised due-process challenges to foreign-policy decisions regarding foreign aid, for instance. But no such problems have arisen thus far, even though courts have assumed that non-sovereign governments have due-process rights. Cf., e.g., Livnat v. Palestinian Auth., 82 F.Supp.3d 19, 26 (D.D.C. 2015) (collecting district-court cases recognizing the Palestinian Authority’s due-process rights). And in any event, our decision today does not define the content of any due-process rights outside the narrow context of personal jurisdiction.

C

This is not the first time that we have applied personal-jurisdiction protections under the Due Process Clause to a non-sovereign foreign government. In Toumazou v. Turkish Republic of Northern Cyprus, No. 14-7170 (D.C. Cir. Jan. 15, 2016), an unpublished judgment, plaintiffs invoked Rule 4(k)(2) to establish personal jurisdiction over the Turkish Republic of Northern Cyprus (TRNC), a self-declared state that the United States does not recognize as sovereign, see U.S. Relations with Cyprus, U.S. Dep’t of State (Sept. 29, 2016), http://www.state.gOv/r/pa/ei/bgn/ 5376.htm. We did not apply the rule from Price. Instead, we conducted the usual due-process inquiry, examining “the defendant’s contacts with the forum,” and ultimately concluding that personal jurisdiction was inconsistent with due process. Toumazou, slip op. at 2 (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011)).

The Second Circuit likewise applies due-process standards for personal jurisdiction when the defendant is a non-sovereign foreign government. In Waldman v. Palestine Liberation Organization, 835 F.3d 317 (2d Cir. 2016), a case substantially similar to the case before us, the Second Circuit held that the Palestinian Authority and the Palestine Liberation Organization are both “persons” under the Fifth Amendment’s Due Process Clause. Id. at 329. The Second Circuit explained that only “separate sovereigns, recognized by the United States government as sovereigns,” are foreign states left unprotected by the Due Process Clause. Id. Both the Palestinian Authority and the Palestine Liberation Organization remain protected by the Due Process Clause under that rule, because neither is so recognized. Id. We agree, at least to the extent that only sovereign entities are excluded from due-process protection as foreign states. As explained below, however, while the Second Circuit uses political recognition as the sole definition of sovereignty for due-process purposes, we leave open whether additional considerations could be relevant in future cases.

D

The appellants offer several other arguments why non-sovereign governments like the Palestinian Authority are not entitled to due-process protection. None is persuasive. First, they argue that our decisions in TMR Energy Ltd. v. State Property Fund of Ukraine, 411 F.3d 296 (D.C. Cir. 2005), and GSS Group Ltd v. National Port Authority, 680 F.3d 805 (D.C. Cir. 2012), support their position. Those cases held that “[wjhenever a foreign sovereign controls an instrumentality to such a degree that a principal-agent relationship arises between them,” then the instrumentality, like the sovereign, receives no due-process protection. GSS, 680 F.3d at 815; see also TMR, 411 F.3d at 301. That is, if an instrumentality is sufficiently close to its government, then the Price rule applies. The appellants insist that under this principle, the Price rule applies here too, because the Palestinian Authority “is not merely a state-owned corporation,” it “is the government.” Appellants’ Br. 21. That is a non sequitur. Whether government instrumentalities receive the same due-process protection as their government (the question in TMR and GSS) has nothing to do with whether a government receives due-process protection in the first place (the question here).

Next, the appellants suggest that other non-sovereign government entities, such as municipalities, do not receive due-process protections, demonstrating a general principle that governments cannot be “persons” under the Due Process Clause. But the only appellate decision they cite, City of East St. Louis v. Circuit Court, 986 F.2d 1142 (7th Cir. 1993), is inapposite. In that case, the Seventh Circuit held that municipalities are not “persons” under the Due Process Clauses. See id. at 1144. But the court did not reason, as the appellants do, that no government can receive due-process protection. Rather, the court relied on the unrelated principle that municipalities are creatures of a State and therefore lack any constitutional rights against the State. See id. (citing Vill. of Arlington Heights v. Reg’l Transp. Auth., 653 F.2d 1149, 1152 (7th Cir. 1981) (citing City of Newark v. New Jersey, 262 U.S. 192, 196, 43 S.Ct. 539, 67 L.Ed. 943 (1923) .(“The city cannot invoke the protection of the Fourteenth Amendment against the state.”))); see also City of Trenton v. New Jersey, 262 U.S. 182, 187, 43 S.Ct. 534, 67 L.Ed. 937 (1923) (“[A municipality is] the creature of the state exercising and holding powers and privileges subject to the sovereign will.”).,

Finally, the appellants argue that applying due-process protections to limit personal jurisdiction in Antiterrorism Act cases would thwart Congress’s intent to provide redress in U.S. courts for terrorism abroad. But there is no indication that Congress thought ordinary due-process requirements would not apply here. And regardless, Congress cannot wish away a constitutional provision.

We conclude that Price’s narrow exception to the general due-process personal-jurisdiction rule applies only to foreign sovereigns. Here, no party argues that the Palestinian Authority is. sovereign by any definition. Appellants’ Br. 17 (denying the Palestinian Authority’s sovereignty “in fact, in law, and as reflected in the official positions of the United States and other countries”); Appellee’s Br. 20-21 (“[I]t is undisputed that the PA is not sovereign in the view of the United States.” (emphasis in original)). Accordingly, Price does not apply, and therefore the district court had personal jurisdiction over the Palestinian Authority only if consistent with due-process limits.

Ill

Our analysis of constitutional limits on personal jurisdiction is governed by the Due Process Clause of the Fifth Amendment. That is unusual, because most cases in the courts of the United States concern Federal Rule of Civil Procedure 4(k)(l), which directs courts to determine whether a state court would have personal jurisdiction, an analysis governed by the Fourteenth Amendment. But the families assert personal jurisdiction under Rule 4(k)(2), which examines the federal court’s jurisdiction, an analysis governed by the Fifth Amendment.

According to the Livnats, Safras, and amici, the Fifth Amendment’s Due Process Clause imposes personal-jurisdiction restrictions that are less protective of defendants than those imposed by the Fourteenth Amendment. Therefore, they argue, we should ignore the standards announced in Daimler AG v. Bauman, — U.S. -, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014), and other Supreme Court personal-jurisdiction cases decided under the Fourteenth Amendment. Instead, they urge us simply to balance the interests favoring and disfavoring jurisdiction. Under that approach, contacts with the United States that would be insufficient under the Fourteenth Amendment might justify personal jurisdiction under the Fifth.

In support of their newly devised theory of the Fifth Amendment, the Liv-nats, Safras, and amici argue that the Fifth Amendment is less concerned with circumscribing the power of courts than is the Fourteenth Amendment. The Fourteenth Amendment limits the power of state courts so as to “prevent[] states from encroaching upon each other’s sovereignty.” Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 203 n.4 (D.C. Cir. 1981). These federalism concerns do not apply, however, in the Fifth Amendment context, because that Amendment limits only the federal government, not the states. Accordingly, Fifth Amendment jurisdictional limits should be more permissive — or so the argument goes.

That argument buckles under the weight of precedent. No court has ever held that the Fifth Amendment permits personal jurisdiction without the same “minimum contacts” with the United States as the Fourteenth Amendment requires with respect to States. To the contrary, both the Supreme Court and this court have applied Fourteenth Amendment personal-jurisdiction standards in Fifth Amendment cases. See Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 620, 112 S.Ct. 2160, 119 L.Ed.2d 394 (1992) (concluding. that the Fifth Amendment’s Due Process Clause did not foreclose personal jurisdiction because the defendant had “purposefully availed itself of the privilege of conducting activities within the United States” (alterations omitted) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985))); Mwani v. bin Laden, 417 F.3d 1, 11-14 (D.C. Cir. 2005); Gilson v. Republic of Ireland, 682 F.2d 1022, 1028-29 (D.C. Cir. 1982). To be sure, neither the Supreme Court nor this court has expressly analyzed whether the Fifth and Fourteenth Amendment standards differ. But the Second, Sixth, Seventh, Eleventh, and Federal Circuits have, and all agree that there is no meaningful difference in the level of contacts required for personal jurisdiction. The only difference in the personal-jurisdiction analysis under the two Amendments is the scope of relevant contacts: Under the' Fourteenth Amendment, which defines the reach of state courts, the relevant contacts are state-specific. Under the Fifth Amendment, which defines the reach of federal courts, contacts with the United States as a whole are relevant. That difference is not at play in this case.

The justifications offered by the Liv-nats, Safras, and amici for their novel theory do not persuade us to depart from this uniform precedent. They observe that Fifth Amendment personal-jurisdiction standards do not safeguard federalism like Fourteenth Amendment standards do. But personal jurisdiction is not just about federalism. A “vital” purpose of personal-jurisdiction standards is to “ensure[ ] fairness to the defendant.” Stabilisierungsfonds Fur Wein, 647 F.2d at 203 n.4. Another purpose is to protect “the sovereign concerns of other nations” whose courts might otherwise adjudicate the claims. Id.; see also Daimler, 134 S.Ct. at 763 (warning that courts should consider “risks to international comity” before extending jurisdiction). Those considerations weigh at least as heavily in the Fifth Amendment context. In federal and state courts alike, defendants should face suit only under fair circumstances. And just as Fourteenth Amendment personal-jurisdiction standards in many cases govern state courts’ power relative to other states’ courts (thus raising federalism concerns), Fifth Amendment standards often govern federal courts’ power relative to other nations’ courts, bringing international-comity concerns to the fore. Because strong justifications for personal-jurisdiction limits apply equally in Fifth Amendment cases,. we decline to devise new standards for those cases that are less stringent than those under the Fourteenth Amendment.

Applying consistent personal-jurisdiction standards under the Fifth and Fourteenth Amendments is also easier to administer. Jurisdictional rules should be “ ‘[s]imple,’ ” “easily ascertainable,” and “ ‘predictable].’ ” Daimler, 134 S.Ct. at 760 (quoting Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010)). It is hardly clear what separate Fifth Amendment personal-jurisdiction standards would consist of, and how exactly they would differ from Fourteenth Amendment standards. Without any compelling justification for developing a new personal-jurisdiction doctrine, we decline to send courts and litigants on that journey.

Finally, we disagree that applying the usual personal-jurisdiction doctrine in Fifth Amendment cases will, as the Liv-nats, Safras, and amici suggest, threaten extraterritorial law enforcement. This case concerns personal jurisdiction in civil cases alone; we do not address Congress’s power to legislate extraterritorially or the personal jurisdiction the federal courts have over criminal defendants. Moreover, our holding merely adheres to the status quo of personal-jurisdiction doctrine; we do not diminish any law-enforcement tools that currently exist. In any event, although congressional interests may be relevant to whether personal jurisdiction comports with due-process standards, cf. Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (directing courts to “consider ... the interests of the forum”, as part of the inquiry into “the reasonableness of the exercise of jurisdiction”), they cannot change the standards themselves.

IV

Under the usual due-process standards, the appellants fail to establish personal jurisdiction over the Palestinian Authority in these cases. There are two types of personal jurisdiction, either of which can suffice. The first, general jurisdiction, “permits a court to assert jurisdiction over a defendant based on a forum connection unrelated to the underlying suit.” Walden v. Fiore, — U.S. -, 134 S.Ct. 1115, 1121 n.6, 188 L.Ed.2d 12 (2014). Due process permits general jurisdiction based on “only a limited set of affiliations with a forum,” all analogous to an individual’s domicile. Daimler AG v. Bauman, — U.S. -, 134 S.Ct. 746, 760, 187 L.Ed.2d 624 (2014). For example, the “equivalent place” to a domicile for a corporation— “one in which the corporation is fairly regarded as at home” — can be the place of incorporation or the principal place of business. Id. (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 131 S.Ct. 2846, 2853-54, 180 L.Ed.2d 796 (2011)).

The appellants do not argue that the Palestinian Authority may be “fairly regarded as at home” in the United States, and for good reason. Its headquarters, officials, and primary activities are all in the West Bank. The Palestinian Authority is therefore not subject to general jurisdiction in the United States.

The second type of personal jurisdiction, specific jurisdiction, requires an “affiliation between the forum and the underlying controversy.” Walden, 134 S.Ct. at 1121 n.6 (alteration omitted) (quoting Goodyear, 131 S.Ct. at 2851). The appellants’ theory of specific jurisdiction is that the attack at Joseph’s Tomb was “part of’ the “policy and practice” of the Palestinian Authority to “us[e] terrorism to influence United States public opinion and policy,” of a piece with the Palestinian Authority’s lobbying and fundraising activities inside the United States. Appellants’ Br. 45.

We need not reach the legal sufficiency of this theory, because the appellants failed to “make a prima facie showing of the pertinent jurisdictional facts” to survive a motion to dismiss for lack of personal jurisdiction. First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988). “Conclusory statements” or a “bare allegation of conspiracy or agency” do not satisfy this burden. Id. at 1378-79 (citation omitted). When deciding personal jurisdiction without an evidentiary hearing — as here — the “court must resolve factual disputes in favor of the plaintiff,” Helmet v. Doletskaya, 393 F.3d 201, 209 (D.C. Cir. 2004), but it “need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts,” id. (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994)).

In their complaints, the families allege that the attack was “part and parcel of’ the Palestinian Authority’s “general practice of using terrorism to influence United States public opinion and policy” and was “intended, through intimidation and coercion, to influence the Israeli and United States government’s policies.” Compl. at 5, 16, Livnat v. Palestinian Auth., No. 1:14-cv-00668 (D.D.C. Apr. 21, 2014); Compl. at 3, 14, Safra v. Palestinian Auth., No. 1:14-cv-00669 (D.D.C. Apr. 21, 2014). But those assertions are conclusory. They merely state the plaintiffs’ theory of specific jurisdiction. The Livnats and Saf-ras presented a declaration from a professor asserting that the Palestinian Authority encourages terrorism against Jews and Israelis in order to influence U.S. policy in the Palestinian Authority’s favor. Even if true, that evidence establishes no link between that practice and the Joseph’s Tomb attack. Indeed, the declaration does not even mention the attack. The families do no more than infer that because some attacks against Jews and Israelis have been aimed to influence U.S. policy, the Joseph’s Tomb attack was, too. The record before us does not support that inference. The appellants therefore have not carried their burden to show specific personal jurisdiction.

Finally, the appellants argue in the alternative that the district court should have permitted -jurisdictional discovery. We review denials of jurisdictional discovery for abuse of discretion. FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1091 (D.C. Cir. 2008). A district court acts well within its discretion to deny discovery when no “facts additional discovery could produce ... would affect [the] jurisdictional analysis.” Goodman Holdings v. Rafidain Bank, 26 F.3d 1143, 1147 (D.C. Cir. 1994).

The district court did not abuse its discretion here, because the additional discovery requested by the appellants would not change our analysis. As to general jurisdiction, the appellants do not even claim that they meet Daimler’s “at home” test. As to specific jurisdiction, they failed to link this particular attack to the alleged plan to influence opinion and policy in the United States. But the additional discovery is not directed at that defect. None of the additional facts that the families seek relate to the attack at Joseph’s Tomb. Instead, their requested discovery concerns only the Palestinian Authority’s general political and financial activities in the United States, such as its lobbying contracts and U.S. investments. See Appellant's’ Br. 56-57. We do not see how any of that information would cure the appellants’ failure to tie their jurisdictional theory to the attack at Joseph’s Tomb with specific facts.

V

The Livnats and Safras failed to carry their burden of demonstrating that personal jurisdiction over the Palestinian Authority in this case would meet the requirements of the Fifth Amendment’s Due Process Clause. We therefore affirm both the district court’s denial of the Livnats’ and Safras’ motions for jurisdictional discovery and its grant of the Palestinian Authority’s motions to dismiss for lack of personal jurisdiction.

So ordered.

      . We merely clarify what qualifies as a "foreign state" under Price. Our holding does not bear on the separate question of whether "an agency or instrumentality” of a foreign state "has a constitutional status different from that of” the foreign state itself under the Due Process Clause. TMR Energy Ltd. v. State Prop. Fund of Ukr., 411 F.3d 296, 301 (D.C. Cir. 2005).

      . It is not even clear whether political subdivisions of a state lack due-process rights. See South Dakota v. U.S. Dep't of Interior, 665 F.3d 986, 990 n.4 (8th Cir. 2012) (describing the circuits as split on the issue). We take no position on the matter, but simply observe that the cases that address the issue do not resolve the question here.

      . The appellants also cite a smattering of trial-court cases denying due-process rights to government entities such as political subdivisions of states, U.S. territories, and other Palestinian organizations. None of those cases explains why being a government would disqualify an entity from the protections of due process.

      .We therefore have no occasion in this case to define the precise limits of what constitutes a "sovereign” excluded from personhood under the Due Process Clauses. At the very least, any such definition must be consistent with Price’s twin rationales, which are limited to entities that (1) are analogous to States of the Union, and (2) have recourse to comity and jnternational-law protections as do "juridical equals” of the United States. In the mine run of cases, whether the United States recognizes the entity as sovereign will determine whether those rationales apply. But we do not attempt to address today the full range of considerations that may arise on different facts in future cases.

      . See Waldman, 835 F.3d at 330 ("[The Second Circuit's] precedents clearly establish the congruence of due process analysis under both the Fourteenth and Fifth Amendments.”); Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 449 (6th Cir. 2012) (holding that the Fifth Amendment personal-jurisdiction analysis "parallels” the Fourteenth Amendment analysis); Abelesz v. OTP Bank, 692 F.3d 638, 660 (7th Cir. 2012) (finding “no merit” in the argument that invoking the Fifth Amendment "relaxes the minimum-contacts inquiry”); Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1219 n.25 (11th Cir. 2009) (using Fourteenth Amendment cases to "guide” the Fifth Amendment personal-jurisdiction analysis because "the language and policy considerations of [the two clauses] are virtually identical”); Deprenyl Animal Health, Inc. v. Univ. of Toronto Innovations Found., 297 F.3d 1343, 1350 (Fed. Cir. 2002) (“Although it was developed in the context of the due process clause of the Fourteenth Amendment, we apply the standard articulated in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny to Fifth Amendment due process cases.... ”).

      . Some courts have also suggested that under the Fifth Amendment, even if the defendant has sufficient nationwide contacts, a plaintiff must additionally justify jurisdiction in the particular state. See, e.g., Peay v. BellSouth Med. Assistance Plan, 205 F.3d 1206, 1211 (10th Cir. 2000) ("[D]ue process requires something more” than permitting jurisdiction "as long as [defendants] have minimum contacts with the United States as a whole.”); Republic of Panama v. BCCI Holdings (Lux.) S.A., 119 F.3d 935, 947 (11th Cir. 1997) ("[E]ven when a defendant resides within the United States, courts must ensure that requiring a defendant to litigate in plaintiff's chosen forum is not unconstitutionally burdensome.”). Because we hold that, for purposes of this case, the Palestinian Authority lacks minimum contacts with the United States as a whole, we express no view on that issue.

      . The appellants also argue that the district court should have deferred its resolution of disputed issues of jurisdictional facts to the merits stage of the litigation. Appellants’ Br. 54. We do not reach that argument, however, because we conclude that their evidence, standing alone, does not make a prima facie showing of their personal-jurisdiction theory. They therefore failed to carry their burden regardless of any factual dispute the Palestinian Authority raises.


source: Caselaw Access Project

author: LIPEZ, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Ernest KAR, Defendant, Appellant.
    No. 15-1608
    United States Court of Appeals, First Circuit.
    March 13, 2017

      Alan D. Campbell, Hamilton, MA, for appellant.
    Donald C. Lockhart, Assistant United States Attorney, with whom Peter F. Ne-ronha, United States Attorney, was on brief, for appellee.
    Before LYNCH, LIPEZ, and THOMPSON, Circuit Judges.
   LIPEZ, Circuit Judge.

At the conclusion of a four-day trial, a jury convicted defendant-appellant Ernest Kar on three counts of bank fraud and one count of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1344 and 2. The district court subsequently sentenced Kar to ninety-three months of imprisonment and ordered him to pay $532,152 in restitution. Kar appeals his conviction, arguing that the district court (1) deprived him of his Sixth Amendment right to effective counsel by refusing to grant his request for a new lawyer; (2) further deprived him of his Sixth Amendment right to counsel by allowing Kar to represent himself at trial when he had not unequivocally waived that right; and (3) abused its discretion when it declined to dismiss a juror for potential bias.

Because we find the district court committed no error, we affirm Kar’s convictions.

I.

A. Kar’s Requests for Substitute Counsel and Self-Representation

In April 2014, Kar was arrested and charged with committing bank fraud and conspiracy to commit bank fraud, related to a counterfeit check cashing scheme that he was running in Rhode Island, Massachusetts, and New Hampshire. Attorney Melissa Larsen was appointed to represent him the following month.

Kar filed a pro se motion seeking substitute counsel on September 8, 2014, accusing Larsen of neglecting to keep him current on his case and failing to oppose government motions for extensions of time. The court held a hearing a week later, in which Larsen stated that she had kept Kar apprised of his case and that she had been attempting to secure him a plea deal.. The court then asked the government to leave, sealed the courtroom, and apparently engaged in an untranscribed conversation with Kar and Larsen. Upon reopening the record, the court denied Kar’s motion.

The following month a federal grand jury issued an eight-count indictment, charging Kar with five counts of committing bank fraud, one count of conspiracy to commit bank fraud, and two counts of aggravated identity theft. At his October 2014 arraignment, Kar orally asked the district court to appoint substitute counsel. At a subsequent hearing on that request, Kar stated that although he and Larsen had “some things to iron up,” it was their “hope [to] continue.” Accordingly, Larsen continued to represent Kar.

Kar’s satisfaction was short-lived; he requested new counsel for a third time — this time by way of a pro se written motion — in November 2014. At a hearing on December 9, Kar expressed a number of concerns: Larsen was not effectively communicating with him; she failed to defend him against a number of charges supposedly committed while he was in custody; and she had failed to secure bail. The district court expressed skepticism about his complaints, warned Kar that it believed he had “a fundamental misunderstanding of what the evidence [was] in the case and what the obligations of the government and [Kar’s] lawyer were,” and ultimately denied his motion.

Kár filed yet another pro se motion in January 2015, again seeking new counsel, or, in the alternative, permission to exercise his Sixth Amendment right of self-representation. In this motion Kar complained that Larsen failed to (1) hire an investigator to counter ,the government’s case, (2) subpoena Kar’s phone records to support his defense, (3) prepare a bond package that Kar had requested, and (4) negotiate a plea deal that satisfied Kar’s sense of reasonableness. Kar also argued that his relationship with Larsen had become “irreconcilable” and that communication between the two of them was “irretrievably broken.”

Larsen filed a response to Kar’s motion, stating that she had met with Kar on eight occasions and corresponded with him in writing thirteen times. Additionally, she asserted that she had provided Kar with complete copies of all discovery provided by the government, described her active role in the plea bargaining process, and recounted that she obtained dismissal of three of the counts in the indictment based upon information that Kar had provided to her.

Kar subsequently sent a letter to the district court stating that he had wanted to negotiate a guilty plea, but Larsen had not given him any information about his possible sentence other than the statutory maximum. He also complained that Larsen had failed to obtain a pre-sentence report from the probation department outlining his calculated offense level, criminal history range, and potential Guidelines sentencing range.

The district court held a hearing on Ear’s latest motion for new counsel on January 29. At the hearing, Kar recounted his qualms with Larsen. The court then explained to him that pre-sentence reports are drafted by the probation office only after a defendant has been convicted by a jury or entered a guilty plea.

After the court indicated that it would not grant his motion for new counsel, Kar stated that he wished to exercise his Sixth Amendment right to proceed pro se. At first, the court was disinclined to allow Kar to represent himself because it viewed him as “completely ignorant of the law.” After a recess, however, the court chose to engage with Kar in the colloquy prescribed by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which held that a criminal defendant has a Sixth Amendment right to self-representation so long as the defendant relinquishes the “traditional benefits associated with the right to counsel ... knowingly and intelligently.” Id. at 885, 95 S.Ct. 2525 (internal quotation marks omitted). Following a thorough discussion with Kar in which the court warned him of the consequences of proceeding pro se, Kar maintained that he still desired to represent himself. The court consequently granted his request and appointed Larsen to be his standby counsel.

At jury selection, the magistrate judge also engaged in a colloquy with Kar regarding his decision to proceed pro se. She again warned Kar about the consequences of representing himself, and then asked if he understood the risks he was taking. Although Kar responded that he did, he complained that he was “forced” to represent himself because his motions for new counsel were denied. He also protested that he was not prepared for trial.

After explaining to Kar that she was “not in a position to grant [him] an extension,” the magistrate again offered him the option of counsel:

You need to choose: Do you wish to proceed pro se, or, do you wish to reengage with Ms. Larsen as your attorney? She is a very competent' and well-respected member of the bar of this court. But, that is your decision. Is it still your wish to remain pro se, understanding the seriousness of what you’re facing?

Kar replied that he had “no choice but to go pro se” because there was a “complete communication breakdown for the past nine months” and reiterated: “[I]f I cannot be appointed new counsel, then. I have no choice ... this court is forcing me to go pro se, and I’m going to go pro se.” Jury selection thus proceeded with Kar representing himself, though he conferred with Larsen at least seven times during the jury selection process.

On the first day of trial, the district court again warned Kar before the entry of any evidence that she believed he was making a “bad decision” by proceeding pro se, but Kar nonfetheless chose not to heed the judge’s warnings. Although Kar protested Larsen’s presence as his standby counsel just before lunch on the second day of trial, the court told him that it was not willing to replace Larsen with another attorney. Kar did not complain about Larsen again, and he continued to confer with her throughout the remainder of the four-day trial.

B. Juror Number One

On the first day of the trial, before the jury was brought into the courtroom, the government informed the court that it had learned that morning that its paralegal— who had not been present for jury selection but was in court that day — personally knew Juror Number One. Specifically, the prosecutor stated that the paralegal was “friendly with Juror Number One’s sister,” that she “kn[ew] ... Juror Number One for quite a few years,” and that “she tells me she sees her maybe once a year, but they are on some social net media together.” In response to this information, the court brought Juror Number One into the courtroom and engaged in the following colloquy:

COURT: [I]t has come to our attention that despite all of the questioning that occurred here during jury selection, apparently the paralegal who works for the United States Attorney’s Office and who is in court here today is someone who knows you....
JUROR: Yes.
COURT: So can you tell me what the nature of your relationship is?
JUROR: Family friend.
COURT: Okay. How frequently do you see her or speak to her either in person or even through social media?
JUROR: Not through social media, not very often. My sister babysits for her pretty frequently; I have maybe once or twice.
COURT: Okay. And have you ever discussed this case with her?
JUROR: No.
COURT: Have you ever discussed her work in the United States Attorney’s Office?
JUROR: No.
Court: Is there anything about that relationship with [the paralegal] that would make it difficult for you to listen to the evidence in this case and listen to the instructions on the law and render a fair and impartial verdict?
JUROR: No.
COURT: You’re sure of that?
JUROR: Yes.

The judge then asked if the prosecutor had any further questions. He did not. She next asked Kar if he had any questions. Kar conferred with Larsen and — without asking the juror any questions — requested that the court strike the juror due to her personal connection to the paralegal. Without asking the government for its position on Kar’s request, the court denied it and cautioned the juror “not to discuss the matter at all with [her] sister and obviously not at all with [the paralegal].” The juror agreed, and the trial began.

II.

The four-day trial culminated with the jury returning a guilty verdict on all counts. The district court subsequently sentenced Kar to eighty-four months of imprisonment, and ordered him to pay $532,152 in restitution. Because Kar was on supervised release for a prior federal conviction when he committed the crimes, the court sentenced him to an additional nine months of incarceration to be served consecutively to his sentence of conviction for a total of ninety-three months of imprisonment. This timely appeal followed.

Kar advances three claims on appeal. First, he argues that the district court violated his Sixth Amendment right to effective assistance of counsel when it denied his repeated motions for new counsel, forcing him to choose between proceeding with ineffective counsel or proceeding pro se. Second, Kar insists that his waiver of counsel was not unequivocal, as required by law, because he vacillated when expressing his desire to proceed pro se under questioning by both the district court judge and the magistrate judge. Finally, Kar argues that the district court abused its discretion by not removing Juror Number One from the panel — or at a minimum designating her an alternate when two alternates were available — thus compromising the jury’s impartiality. We address each of Kar’s arguments in turn.

A. Kar’s Motions for New Appointed Counsel

Criminal defendants have a fundamental right of representation by effective counsel throughout the trial process. Johnson v. Zerbst, 304 U.S. 458, 467-68, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); see also United States v. Proctor, 166 F.3d 396, 401 (1st Cir. 1999). Still, the Sixth Amendment does not provide an unfettered right to appointed counsel of a defendant’s choosing. United States v. Jones, 778 F.3d 375, 388 (1st Cir. 2015). “[T]he essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). District courts, in some circumstances, may force criminal defendants to choose between effective representation by unwanted counsel and proceeding pro se. See, e.g., Jones, 778 F.3d at 388; Proctor, 166 F.3d at 402.

We review a district court’s decision denying a defendant’s motion for new counsel for abuse of discretion. United States v. Francois, 715 F.3d 21, 29 (1st Cir. 2013). We analyze the district court’s decision based upon three factors set forth in United States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986): “(1) the timeliness of the motion; (2) the adequacy of the court’s inquiry into the defendant’s complaint; and (3) whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense.” Francois, 715 F.3d at 28 (quoting United States v. Hicks, 531 F.3d 49, 54-55 (1st Cir. 2008)).

Kar first asked for new counsel in September 2014. Although he appeared to reconcile with Larsen for a short period thereafter, he consistently sought new counsel for more than two months leading up to his trial. We agree with his assertion that the request for substitute counsel was timely.

We do not, however, agree with Kar’s contention that the court “refused to let [him] air all his complaints.” The district court engaged with Kar and Larsen no fewer than four times in an attempt to determine whether appointing new counsel was appropriate. At two separate hearings scheduled specifically for the purpose of addressing Kar’s motions for new counsel, the court exhaustively probed both Kar and Larsen to ascertain the quality of communication between them. The court eventually limited Kar’s efforts to speak, but it did so only after ensuring it had an adequate understanding of his position. As in Allen, the court “invited [Kar] to make a statement, listened to his reasons for being dissatisfied with his counsel, and found them to be without merit.” 789 F.2d at 93.

Nor did Kar experience'“a total lack of communication [with counsel] preventing an adequate defense.” Id. at 92. Kar withdrew his initial grievances concerning Larsen at his October 2014 hearing when he told the court that it was his “hope [to] continue the way it is” with Larsen as his attorney. Only from November onward did he steadfastly insist upon new representation. But Larsen maintained that the two continued to communicate, stating that she had met with Kar personally on eight occasions — twice after their alleged communication break in November — and corresponded with him in writing a total of thirteen times. She further asserted that she had provided Kar with a comprehensive copy of- discovery and obtained dismissal of three counts based on information he provided to her.

Kar’s actual grievance was not that he and Larsen were failing to communicate, but instead that he simply disliked the substance of Larsen’s advice. Disfavoring counsel’s guidance is distinct from failing to communicate with counsel, and the third Allen prong does not guarantee “the right fi\ a ‘meaningful relationship’ between an accused and his counsel.” United States v. Machor, 879 F.2d 945, 952 (1st Cir. 1989) (quoting Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983)). Hence, we agree with the district court’s determination that there was no breakdown in communication between Kar and Larsen, and we conclude that the district court did not abuse its discretion when it denied Kar’s motion for substitution of counsel.

B. Kar’s Waiver of His Right to Appointed Counsel

Kar’s second argument is related to his first. He contends that the district court denied his Sixth Amendment right to an attorney by allowing him to represent himself at trial. We review a trial court’s decision to allow a defendant to proceed pro se for abuse of discretion. United States v. Woodard, 291 F.3d 95, 109 (1st Cir. 2002).

Although the Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel, defendants maintain an alternative right to self-representation. United States v. Robinson, 753 F.3d 31, 42 (1st Cir. 2014) (citing Faretta, 422 U.S. at 817, 95 S.Ct. 2525). Nonetheless, “ ‘[b]ecause of the disadvantages to a defendant that inure from pro se representation, a defendant must “knowingly and intelligently” waive his right to counsel before he may be permitted to proceed pro se.’ ” Francois, 715 F.3d at 29-30 (quoting United States v. Kneeland, 148 F.3d 6,11 (1st Cir. 1998)).

Hence, before a judge can allow a criminal defendant to proceed pro se, she is required to engage in what is sometimes called a “Faretta colloquy.” A judge must examine the defendant, “ ‘indulge in every reasonable presumption against waiver of the right to counsel,’ and ‘investigate as long and as thoroughly as the circumstances of the case before [her] demand.’ ” Robinson, 758 F.3d at 43 (quoting Proctor, 166 F.3d at 401-02). Typically, when a defendant challenges a trial court’s decision permitting him to represent himself, the defendant attacks the comprehensiveness of the district court’s Faretta inquiry. See, e.g., Jones, 778 F.3d at 389-90; Robinson, 753 F.3d at 42; Francois, 715 F.3d at 30. Here, Kar does not dispute the adequacy of the district court’s questioning, nor do we find any flaws with the court’s exhaustive examination of Kar.

Instead, Kar raises a slightly more nuanced challenge, claiming that he did not surrender his right to counsel by using “unequivocal language.” Woodard, 291 F.3d at 109 (“Á defendant who seeks to relinquish her right to counsel must so state in unequivocal language.”); see also Jones, 778 F.3d at 389; Robinson, 753 F.3d at 42. After the district court engaged in a comprehensive Faretta colloquy in which it warned Kar of the serious consequences of waiving his right to counsel, the court asked Kar, “[W]ith those warnings in mind, do you still wish to represent yourself at trial?” Kar replied, ‘Tes, your Hon- or.” The court then appointed Larsen as standby counsel and explained to Kar her role. But it also warned him that even with standby counsel, it ultimately would be Kar, himself, who would be responsible for his defense, stating, “I want to make sure you’re going into [the trial process] with your eyes wide open. Do you understand that?” Kar replied, “Absolutely.” Kar’s choice to represent himself could not have been stated more unequivocally.

Yet Kar points to a stray comment he made shortly after his Faretta colloquy: “I just néed an attorney who will just prepare my defense at trial.”- This comment, however, was not made in the context of the Faretta inquiry. Instead, it was simply an attempt to relitigate his dissatisfaction with the court’s denial of his motion for substitute counsel, and, as he puts it, the “Hobson’s Choice” that he faced between proceeding with an attorney whom he no longer wanted and representing himself. We have rejected this exact argument in the past. See, e.g., Francois, 715 F.3d at 28-29 (rejecting defendant’s “Hobson’s Choice” argument); Proctor, 166 F.3d at 402 (‘We repeatedly have held that, in appropriate circumstances, a trial court may force a defendant to choose between proceeding to trial with an unwanted attorney and representing himself.”).

There is no question that Kar’s decision to waive his right to counsel was knowing, intelligent, voluntary, and unequivocal. He even cited Faretta in his motion to persuade the district court judge to allow him to proceed pro se. See Robinson, 753 F.3d at 44-45 (noting that defendant’s knowledge and citation of Faretta is additional evidence of the voluntary and intelligent nature of waiving the Sixth Amendment right to counsel and the risks involved therein). Hence, the district court did not abuse its discretion by allowing Kar to waive his Sixth Amendment right to counsel and represent himself at trial.

C. Juror Number One

Kar argues that the district court undermined his Sixth Amendment right to a trial by an impartial jury by not granting his request to dismiss Juror Number One — or at least demoting her to the role of alternate — when the court discovered that she was a personal friend of the government’s paralegal.

The presence of merely one biased member on a criminal jury requires reversal. Parker v. Gladden, 385 U.S. 363, 366, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (per curiam); United States v. Godfrey, 787 F.3d 72, 81 (1st Cir. 2015). The Supreme Court instructs us that “[a] trial court’s findings of juror impartiality may be overturned only for manifest error.” United States v. Casellas-Toro, 807 F.3d 380, 385 (1st Cir. 2015) (quoting Mu’Min v. Virginia, 500 U.S. 415, 428, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991)). Under this stringent standard of review, we have consistently stated that we will reverse district court determinations regarding juror bias only where there has been a “clear abuse of discretion.” Godfrey, 787 F.3d at 81; see also, e.g., United States v. Lowe, 145 F.3d 45, 48 (1st Cir. 1998). Hence, when we review assessments of juror partiality, “the deference due to district courts is at its pinnacle.” Skilling v. United States, 561 U.S. 358, 396, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010); see also Godfrey, 787 F.3d at 81.

Jurors may be biased in two ways. A juror’s answers to questions on voir dire might display personal bias, which is referred to as “bias in fact.” Godfrey, 787 F.3d at 81. Alternatively, a juror’s life circumstances or relationship to one of the parties — regardless of how the juror answers questions related to his or her impartiality on voir dire — can reveal a “bias as a matter of law.” Godfrey, 787 F.3d at 81.

Juror Number One expressed no bias in fact. She asserted that she had never spoken to the paralegal about Ear’s case specifically, or the paralegal’s work generally. Moreover, she affirmed that she was “sure” her prior relationship with the paralegal would not prevent her from considering the evidence, listening to the judge’s instructions, and rendering a fair and impartial verdict. There is nothing in the record to indicate that the juror’s statements were dishonest.

Nor can we say that the juror posed any bias as a matter of law, which only occurs in “ ‘exceptional’ or ‘extreme’ circumstances.” United States v. Burgos-Montes, 786 F.3d 92, 111 (1st Cir. 2015 (quoting Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O’Connor, J., concurring)). In her concurrence in Smith, Justice O’Connor provided a non-exhaustive list of circumstances that might trigger a finding of bias as a matter of law. 455 U.S. at 222, 102 S.Ct. 940. They include “a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction.” Id.

Ear argues that although Juror Number One was not an employee of the prosecuting agency, she “may have been an employee of a member of the prosecution team.” This characterization exaggerates the juror’s relationship with the paralegal. Babysitting for the paralegal “maybe once or twice” is a far cry from the employer-employee relationship with the prosecuting agency condemned by Justice O’Connor. Nor does the relationship mirror any of the other problematic conflicts highlighted in Smith. Juror Number One’s relationship with the paralegal did not constitute bias as a matter of law, and the district court did not commit a clear abuse of discretion by allowing her to serve.

Affirmed.

      . The government filed three motions to extend the time period to file an indictment or information against Kar — as required by the Speedy Trial Act, 18 U.S.C. § 3161(b) — while it engaged in plea negotiations with Larsen.

      . Soon after the indictment was issued, the court dismissed — at Larsen's request — one of the bank fraud counts and both of the aggravated identity theft counts. It also dismissed a second bank fraud count at the government’s request just before Kar’s trial commenced, leaving three counts of bank, fraud and one count of conspiracy to commit bank fraud to be tried before the jury.

      . Larsen had, in fact, convinced the prosecutor to dismiss the charges to which Kar was referring. See supra note 2.

      . Additionally, two days after responding to Kar’s motion for substitute counsel, Larsen filed two motions - in limine and a pretrial memorandum on his behalf.

      . Although Kar’s pro se notice of appeal specifically restricted the issues to be argued on appeal to a number of sentencing factors, he now seeks to challenge the merits of his conviction with the benefit of counsel. "[BJecause the merits of the appeal favor the appellee, we will bypass the jurisdictional issue” concerning the scope of Kar’s notice of appeal. United States v. Woods, 210 F.3d 70, 74 (1st Cir. 2000) The defects in the notice of appeal do not bear upon Article III subject matter jurisdiction, and, hence, do not prevent us from addressing Kar’s appeal. See id, at 74 n.2 (1st Cir. 2000) (noting that this circuit construes the Supreme Court’s ban on “hypothetical jurisdiction” to apply only to Article III subject matter jurisdiction).

      . Kar’s conduct subsequent to the court's denial of substitute counsel bolsters its conclusion that Kar and Larsen had not experienced a total breakdown of communication. Even after Kar proceeded pro se, he continued to confer with Larsen numerous times during jury selection and throughout his trial.

      . Kar’s similar complaints lodged with the magistrate judge at jury selection six days after unequivocally surrendering his right to counsel are equally unpersuasive.

      . We sometimes refer to bias as a matter of law as "implied bias.” See Godfrey, 787 F.3d at 81 (characterizing "bias as a matter of law” as "implied bias”).

      . The government indicated at oral argument that in the future it plans to include the names of its paralegals on its list of attorneys and witnesses at jury empanelment. We think this is a wise decision. If the government had followed that practice here, this issue could have been avoided.