 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued September 12, 2017             Decided July 20, 2018

                       No. 16-7142

 CHAIM KAPLAN, INDIVIDUALLY AND AS NATURAL GUARDIAN
 OF PLAINTIFFS M.K.(1), A.L.K., M.K.(2), C.K. AND E.K., ET
                           AL.,
                       APPELLANTS

                             v.

  CENTRAL BANK OF THE ISLAMIC REPUBLIC OF IRAN, ALSO
 KNOWN AS BANK MARKAZI JOMHOURI ISLAMI IRAN, ET AL.,
                     APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:10-cv-00483)


     Meir Katz argued the cause for appellants. With him on
the briefs was Robert J. Tolchin.

     Jeremy D. Frey argued the cause for appellees. With him
on the brief was Matthew D. Foster.


                       No. 16-7122

                  CHAIM KAPLAN, ET AL.,
                      APPELLANTS
                               2

                               v.

 HEZBOLLAH, ALSO KNOWN AS HIZBULLAH, ALSO KNOWN AS
 HIZBOLLAH, ALSO KNOWN AS HEZBALLAH, ALSO KNOWN AS
HIZBALLAH AND DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA,
            ALSO KNOWN AS NORTH KOREA,
                     APPELLEES


         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:09-cv-00646)


     Meir Katz argued the cause for appellants. With him on
the briefs was Robert J. Tolchin.

    Anthony F. Shelley, appointed by the court, argued the
cause as amicus curiae in support of the portions of the District
Court’s judgment at issue on appeal. With him on the brief
were Ian A. Herbert and Adam W. Braskich.

    Before: KAVANAUGH * and SRINIVASAN, Circuit Judges,
and EDWARDS, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge SRINIVASAN.

   Concurring opinion filed by Senior Circuit Judge
EDWARDS.




    *
      Judge Kavanaugh was a member of the panel at the time the
cases were argued but did not participate in this opinion.
                               3
     SRINIVASAN, Circuit Judge: These cases arise from a
barrage of rocket attacks launched by Hezbollah into northern
Israel in the summer of 2006. Plaintiffs are a group of
American, Israeli, and Canadian citizens who sued Hezbollah
and two foreign banks for injuries sustained during the attacks.
In one action, the American plaintiffs allege that Hezbollah’s
rocket attacks amounted to acts of international terrorism, in
violation of the Anti-Terrorism Act (ATA). In a second action,
all of the plaintiffs accuse the banks of funding Hezbollah’s
attacks, in violation of both the ATA and the Alien Tort Statute
(ATS).

    The district court dismissed both complaints. The court
concluded that the ATA’s so-called act-of-war exception
precluded the claims under that statute, and that the
presumption against extraterritoriality barred the ATS claims.

     We vacate the district court’s dismissal with respect to the
ATA claims and remand for further proceedings. We conclude
that the district court must first determine that it has personal
jurisdiction over the defendants before applying the statute’s
act-of-war exception. We affirm the district court’s dismissal
of the claims under the ATS based on the Supreme Court’s
recent decision in Jesner v. Arab Bank, PLC, 138 S. Ct. 1386
(2018), which holds that foreign corporations (like the bank
defendants here) are not subject to liability under that statute.

                               I.

     The complaints in these cases contain the following
allegations, which we assume are true given that the claims
before us on appeal were dismissed based on the alleged facts.
See English v. District of Columbia, 717 F.3d 968, 971 (D.C.
Cir. 2013).
                               4
     On July 12, 2006, Hezbollah militants left Lebanon,
crossed the Israeli border, and kidnapped and killed several
Israeli soldiers. Israel responded by mounting a ground
offensive in Lebanon and deploying a bombing campaign
against Hezbollah. Hezbollah then initiated a campaign of
rocket attacks, firing thousands of unguided rockets into
civilian populations in northern Israel, striking cities, towns,
and villages. The conflict ended on August 14, 2006, when the
United Nations brokered a cease-fire between Hezbollah,
Israel, and Lebanon. Over the course of the 34-day conflict,
numerous persons lost their lives, including more than 1,000
Lebanese civilians, between 250 and 500 members of
Hezbollah, 119 Israeli soldiers, and 43 Israeli civilians.

     In 2009 and 2010, plaintiffs filed two separate actions to
recover for their injuries from Hezbollah’s rocket attacks. In
the first action, a group of American plaintiffs brought
Anti-Terrorism Act claims against Hezbollah, Foreign
Sovereign Immunities Act claims against North Korea for
funding the rocket attacks, and common law tort claims against
both defendants. In the second action, the same American
plaintiffs brought ATA claims against Bank Saderat PLC for
transferring funds from Iran to Hezbollah, and Foreign
Sovereign Immunities Act claims against Iran, the Central
Bank of Iran, and Bank Saderat Iran for supporting the rocket
attacks. The second action also included claims by a group of
non-American plaintiffs against Bank Saderat Iran and Bank
Saderat PLC under the Alien Tort Statute. In addition, all
plaintiffs in the second action raised claims under Israeli tort
law against Bank Saderat Iran and Bank Saderat PLC.

    The district court largely addressed the two cases together.
Because Hezbollah and North Korea failed to appear after
being served, the plaintiffs moved for a default judgment
against those defendants. Bank Saderat Iran and Bank Saderat
                               5
PLC both appeared and moved to dismiss the claims against
them for lack of subject-matter jurisdiction or personal
jurisdiction, and for failure to state a claim.

     On August 20, 2013, the district court dismissed the
Anti-Terrorism Act claims (which had been brought against
Hezbollah and Bank Saderat PLC), holding that the ATA’s
act-of-war exception precluded liability. The court also
dismissed the Alien Tort Statute claims (which had been
brought against Bank Saderat PLC and Bank Saderat Iran),
based on the presumption against extraterritoriality. Kaplan v.
Cent. Bank of Islamic Republic of Iran, 961 F. Supp. 2d 185,
204-05 (D.D.C. 2013). And the court dismissed the Foreign
Sovereign Immunities Act claims against Bank Saderat Iran,
because the bank was not the “agency or instrumentality of a
foreign state.” Id. at 198-99.

     On July 24, 2014, the district court issued an opinion
concluding that Iran and North Korea, but not the Central Bank
of Iran, had materially supported Hezbollah’s attacks in
violation of the Foreign Sovereign Immunities Act. On
September 30, 2016, after further proceedings on the claims
against Iran and North Korea, the district court entered a
default judgment against those defendants, awarding the
plaintiffs more than $169 million in compensatory and punitive
damages.

     The plaintiffs now appeal the dismissal of their
Anti-Terrorism Act claims against Hezbollah and Bank Saderat
PLC, as well as the dismissal of their Alien Tort Statute claims
against Bank Saderat PLC and Bank Saderat Iran. Because
Hezbollah had not entered an appearance, we appointed an
amicus curiae to present arguments supporting the portions of
the district court’s judgment at issue on appeal.
                                 6
                                 II.

     We initially consider two challenges to our appellate
jurisdiction. Under 28 U.S.C. § 1291, we may review “final
decisions” of the district courts in civil cases if an appeal is
taken within thirty days of entry of the judgment or order being
challenged. See Fed. R. App. P. 4(a)(1)(A). Bank Saderat PLC
and Bank Saderat Iran (the Banks) argue that plaintiffs’ appeal
is untimely because the district court entered its order
dismissing the claims against the Banks on August 20, 2013,
more than three years before the plaintiffs (on November 27,
2016) filed their notice of appeal concerning those claims.
Amicus, for its part, argues that plaintiffs’ appeal of the
dismissal of the claims against Hezbollah is premature because
the district court’s September 30, 2016, order was not a “final”
decision within the meaning of Section 1291. We disagree on
both counts.

                                 A.

     We first address the timeliness of the plaintiffs’ appeal of
the August 2013 dismissal of their claims against the Banks.
Federal Rule of Civil Procedure 54(b) governs the entry of final
judgment in a case involving multiple claims and parties. In
order to enter “a final judgment as to one or more, but fewer
than all, claims or parties,” a district court must “expressly
determine[] that there is no just reason for delay.” Fed. R. Civ.
P. 54(b). Otherwise, any decision “that adjudicates . . . the
rights and liabilities of fewer than all the parties” is not a final,
appealable judgment. Id.

    Relatedly, our court has determined that unserved
defendants “are not ‘parties’ within the meaning of Rule
54(b).” Cambridge Holdings Grp., Inc. v. Fed. Ins. Co., 489
F.3d 1356, 1360 (D.C. Cir. 2007). Therefore, “a district court
                                 7
order disposing of all claims against all properly served
defendants” generally constitutes a final judgment “even if
claims against those not properly served remain unresolved.”
Id. at 1360-61.

    Relying on that aspect of our decision in Cambridge, the
Banks contend that the plaintiffs’ appeal is untimely. The
Banks observe that, at the time of the district court’s August
2013 dismissal of the claims against them, the remaining
defendants in the case involving the Banks—Iran and Central
Bank of Iran (CBI)—had not yet been properly served. Thus,
in the Banks’ view, Iran and CBI were not “parties” for
purposes of Rule 54(b), meaning that the August 2013 order
constituted a final judgment “disposing of all claims against all
properly served defendants.” Cambridge, 489 F.3d at 1361.
That order, the Banks submit, thus needed to be appealed
within 30 days. See Fed. R. App. P. 4(a)(1)(A).

     The Banks are correct that, under Cambridge, the
existence of unresolved claims against unserved defendants
generally will not preclude treatment of an order disposing of
all other claims as a final, appealable judgment. But
Cambridge also recognized the possibility of a different result
when the district court affirmatively contemplates further
proceedings on the claims against the unserved defendants. We
observed that, in the Ninth Circuit, “an order disposing of all
claims only against served parties is not final if ‘it is clear from
the course of proceedings that further adjudication is
contemplated’ by the district court.” Cambridge, 489 F.3d at
1360 n.2 (quoting Disabled Rights Action Comm. v. Las Vegas
Events, Inc., 375 F.3d 861, 872 (9th Cir. 2004)).

    Although we had no occasion in Cambridge to consider
whether to adopt the same approach, we do so today. We
conclude that, when a district court makes plain that it foresees
                               8
further proceedings on unresolved claims against defendants
who have yet to be properly served, a decision resolving all the
claims against the properly served defendants is not a final,
appealable judgment. In that situation, any appeal should await
resolution of the contemplated further proceedings on the
claims against the as-yet-unserved defendants.

     That approach vindicates Rule 54(b)’s central purpose of
avoiding the “piecemeal disposition of litigation.” Cambridge,
489 F.3d at 1361. It also ensures that Rule 54(b) continues to
enable district courts to lend “welcome certainty to the
appellate procedure.” Sears, Roebuck & Co. v. Mackey, 351
U.S. 427, 435 (1956). That is because, if a district court wishes
to allow the immediate appeal of its disposition of claims
against the properly served defendants even though it
affirmatively contemplates further proceedings on the
remaining claims, it can do so by expressly determining “that
there is no just reason for delay.” Fed. R. Civ. P. 54(b).

     Consider the anomalous implications of a contrary
approach, under which the resolution of claims against
properly served defendants would be considered a final
judgment even though the district court intends further
proceedings against as-yet-unserved defendants. In such a
regime, the district court would be unable to dispose of the
claims against properly served defendants without entering a
final judgment, even if it fully expects other defendants to be
imminently served. The court might then opt to delay
announcing its resolution of the claims against the already
served defendants so as to avoid fracturing the case,
contravening the Rules’ general preference for the swift
resolution of claims. See Fed. R. Civ. P. 1. The better course
is to recognize that, when a district court plainly contemplates
further proceedings on remaining claims against
as-yet-unserved defendants, the resolution of the claims against
                              9
properly served defendants is not a final, appealable judgment
(absent an express and reasonable determination of “no just
reason for delay” under Rule 54(b)). See Bldg. Indus. Ass’n of
Superior California v. Babbitt, 161 F.3d 740, 741 (D.C. Cir.
1998).

     Applying that approach here, it is clear that, when the
district court dismissed the claims against the Banks in August
2013, it contemplated further proceedings on the claims against
the unserved defendants, Iran and CBI. In its memorandum
opinion dismissing the claims against the Banks, the court
repeatedly referred to Iran and CBI as “the remaining
defendants,” and the FSIA claims against them as the
“remaining claims.” Kaplan, 961 F. Supp. 2d at 206. The court
also discussed the failed previous attempts at service and
ordered the plaintiffs to serve Iran and CBI through diplomatic
channels within twenty-one days. Id. Indeed, in its order
accompanying the opinion, the court dismissed the claims
against the Banks in two lines and then devoted a full page to
describing how the plaintiffs should “commence service of
process via diplomatic channels” for their “remaining claims.”
Order, Kaplan v. Cent. Bank of Islamic Republic of Iran, No.
10-cv-483 (D.D.C. Aug. 20, 2013), ECF No. 41. In short, both
the opinion and order make clear the district court’s
expectation that the remaining defendants could be properly
served and the claims against them would then proceed to
resolution (which in fact happened).

    In those circumstances, we hold that the district court’s
August 20, 2013, order, dismissing the claims against the
Banks, was not a final, appealable judgment. Rather, the
court’s October 28, 2016, order denying plaintiffs’ motion for
reconsideration (and for alteration or amendment of the
judgment) was the operative appealable judgment. See Fed. R.
                               10
App. P. 4(a)(4)(A)(iv). Plaintiffs timely filed their notice of
appeal within 30 days of that judgment.

                               B.

     Whereas the Banks contend that the appeal of the dismissal
of the claims against them was too late, Amicus suggests that
the appeal of the dismissal of the claims against Hezbollah may
have been too early. The district court initially dismissed the
ATA claims against Hezbollah on August 20, 2013. And on
August 20, 2015, plaintiffs voluntarily dismissed the tort
claims against Hezbollah. After further proceedings on claims
involving other defendants, the district court, on September 30,
2016, entered an “Order and Judgment” that it characterized as
a “final judgment.” Order & Judgment, Kaplan v. Hezbollah,
No. 09-cv-646 (D.D.C. Sept. 30, 2016), ECF No. 84. One
week later, on October 7, the plaintiffs filed a notice of appeal
concerning the dismissal of the claims against Hezbollah.

     As we have seen, an order resolving fewer than all claims
against all defendants generally is not a final, appealable order.
See Fed. R. Civ. P. 54(b). Amicus argues that we may lack
jurisdiction over the appeal concerning the claims against
Hezbollah insofar as the district court’s September 30, 2016,
order left unresolved certain of the claims in the case involving
Hezbollah. In particular, although the plaintiffs’ complaint in
that case alleged both Foreign Sovereign Immunities Act
(FSIA) claims and tort claims against North Korea, the district
court expressly referenced only the FSIA claims in its opinion
granting judgment on those claims. To the extent the tort
claims against North Korea remained unresolved, Amicus
contends, there may have been no final, appealable judgment.

    We conclude that there was a final, appealable judgment
because the district court treated the FSIA and tort claims as a
                               11
common, undifferentiated whole. That is consistent with the
structure of the FSIA, under which foreign sovereigns are
rendered “liable in the same manner and to the same extent as
a private individual under like circumstances.” 28 U.S.C.
§ 1606; see Owens v. Republic of Sudan, 864 F.3d 751, 763-64
(D.C. Cir. 2017) (noting that because “[n]one of the original
exceptions in the FSIA created a substantive cause of action
against a foreign state,” plaintiffs bringing an FSIA claim
generally must rely on a source of “underlying substantive law”
such as tort law).

     Throughout the proceedings in the district court, the court
and parties treated the case as one involving claims brought
under the FSIA, such that the tort claims were subsumed in the
FSIA claims. For instance, after dismissing the ATA claims
against Hezbollah, the court explained that only the FSIA
claims against North Korea remained. And any ambiguity
about the district court’s intent to end the case—with respect to
all claims—was resolved when the court issued its September
30, 2016, order, which it termed a “final appealable order”
entering “final judgment” against North Korea for violating the
FSIA. The judgment awarded the plaintiffs over $169 million
in damages.

     Plaintiffs, at that point, had obtained from North Korea all
of the relief they sought, for all of the injuries they alleged.
There was no remaining injury to be redressed via tort claims—
any separate recovery on those claims would have been fully
redundant. See Kassman v. Am. Univ., 546 F.2d 1029, 1034
(D.C. Cir. 1976); Roth v. Islamic Republic of Iran, 78 F. Supp.
3d 379, 401 (D.D.C. 2015). Consequently, the judgment, along
with the district court’s unequivocal words of finality, brought
the action to a close, just as the district court intended. Cf.
Attias v. Carefirst, Inc., 865 F.3d 620, 624 (D.C. Cir. 2017)
(characterizing the “district court’s intent [a]s a significant
                                12
factor” in determining finality). We thus have appellate
jurisdiction to hear the appeal from that judgment.

                               III.

     Recall that the district court dismissed the Anti-Terrorism
Act claims against Hezbollah and Bank Saderat PLC under the
statute’s act-of-war exception, and dismissed the Alien Tort
Statute claims against both of the Banks based on the
presumption against extraterritoriality. Plaintiffs argue that the
district court erred by resolving the ATA claims on those
grounds without first confirming that it had personal
jurisdiction over the defendants. And because we have a duty
to assure ourselves of our jurisdiction, we must also consider
whether the court erred in the same respect with regard to the
ATS claims.

      We take up the following questions in addressing whether
the district court was obligated to confirm the existence of
personal jurisdiction before resolving the ATA and ATS
claims: (i) can plaintiffs challenge the dismissals on that basis
even though they believe personal jurisdiction exists?; (ii) if so,
is personal jurisdiction an issue that a district court must
examine before reaching the merits of a claim?; (iii) if so, is the
ATA’s act-of-war exception a merits issue, such that it can be
reached only after assuring the existence of personal
jurisdiction?; and (iv) similarly, can the ATS claims be
resolved based on the presumption against extraterritoriality, or
based on the Supreme Court’s recent rejection of ATS liability
for foreign corporations, see Jesner, 138 S. Ct. 1386, without
first addressing personal jurisdiction?

     We agree with the plaintiffs as to the ATA claims, and so
vacate the dismissal of those claims and remand to enable the
district court to address personal jurisdiction. But we affirm
                                13
the dismissal of the ATS claims based on the Supreme Court’s
decision in Jesner.

                                A.

     In the proceedings before the district court, plaintiffs
understandably asserted that the court had personal jurisdiction
over the defendants. In light of plaintiffs’ position to that effect
in the district court, Amicus argues that plaintiffs either waived
the ability to raise a challenge based on the district court’s
failure to assure the existence of personal jurisdiction, or lack
standing to bring such a challenge on appeal. We disagree.

     Plaintiffs do not now take back their previous assertion
that the district court had personal jurisdiction over the
defendants. Instead, plaintiffs want the district court to
establish the existence of personal jurisdiction rather than
bypass the issue, because a failure by the court to establish
personal jurisdiction could undermine the enforceability of its
judgment in a subsequent proceeding. For instance, if this
court were to reverse the district court’s dismissals and
plaintiffs ultimately were to prevail on the claims, a failure to
establish personal jurisdiction could impair the plaintiffs’
ability to enforce the judgment in their favor. See Combs v.
Nick Garin Trucking, 825 F.2d 437, 442 (D.C. Cir. 1987)
(“[A]n in personam judgment entered without personal
jurisdiction over a defendant is void as to that defendant.”).
That alleged injury suffices to establish the plaintiffs’ standing
on appeal to challenge the district court’s orders on the ground
that the court was obligated to establish personal jurisdiction
before going on to resolve the claims. See Nat’l Res. Def.
Council v. Pena, 147 F.3d 1012, 1018 (D.C. Cir. 1998); 15A
Charles Alan Wright et al., Federal Practice and Procedure
§ 3902 (2d ed. 1992).
                               14
                               B.

     In contending that the district court was required to
establish the existence of personal jurisdiction over the
defendants before resolving the claims, plaintiffs rely on
principles established by the Supreme Court in Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83 (1998). In Steel
Co., the Court rejected the practice of “hypothetical
jurisdiction,” under which a court assumes it has jurisdiction
over a claim and proceeds to resolve it on the merits. Rather
than assuming (without deciding) jurisdiction and going on to
address the merits, Steel Co. explained, a court must first
establish as “an antecedent” matter that it has jurisdiction. Id.
at 101. That is because, without jurisdiction, a court lacks
power to consider a case at all. Id. at 94; see Morrison v. Nat’l
Australia Bank Ltd., 561 U.S. 247, 254 (2010).

     Steel Co. involved a question of subject-matter jurisdiction
(there, the issue of standing under Article III). See 523 U.S. at
102. Here, we consider whether the same rule of priority
extends to a court’s personal jurisdiction: that is, must a court
likewise assure itself that it has personal jurisdiction before
moving on to address the merits of a claim? The plaintiffs say
yes, but the Banks and Amicus say no. The plaintiffs have the
correct understanding.

     The Supreme Court settled the issue in Sinochem
International Co. v. Malaysia International Shipping Corp.,
549 U.S. 422 (2007). There, the Court explained that its
decision in Steel Co. “clarified that a federal court generally
may not rule on the merits of a case without first determining
that it has jurisdiction over the category of claim in suit
(subject-matter jurisdiction) and the parties (personal
jurisdiction).” Id. at 430-31 (emphasis added). After
Sinochem, it is clear that, when personal jurisdiction is in
                               15
question, a court must first determine that it possesses personal
jurisdiction over the defendants before it can address the merits
of a claim.

     While we have not previously addressed the issue
squarely, our precedent is consistent with that understanding.
For example, in Forras v. Rauf, the defendant moved to dismiss
for lack of subject-matter and personal jurisdiction, as well as
on several merits grounds. 812 F.3d 1102, 1104 (D.C.
Cir.), cert. denied, 137 S. Ct. 375 (2016). The district court
dismissed on the merits without addressing either jurisdictional
objection. Citing “Steel Co. and its progeny,” we found the
district court erred by “leapfrogg[ing] over the serious
jurisdictional issues.” Id. at 1105. Without distinguishing
between subject-matter and personal jurisdiction, we held that
“[t]he district court plainly should have satisfied any
jurisdictional concerns before turning to a merits question[.]”
Id. In another case, similarly, we relied on Sinochem in
explaining that we would first address a personal-jurisdiction
challenge before turning to the merits of the appeal. Gilmore
v. Palestinian Interim Self-Gov’t Auth., 843 F.3d 958, 964
(D.C. Cir. 2016).

     It is true that, in two prior decisions, we understood Steel
Co. to require resolving issues of Article III jurisdiction before
addressing the merits. See Chalabi v. Hashemite Kingdom of
Jordan, 543 F.3d 725, 728 (D.C. Cir. 2008); Kramer v. Gates,
481 F.3d 788, 791 (D.C. Cir. 2007). Insofar as those decisions
interpreted Steel Co.’s prohibition against “hypothetical
jurisdiction” to be confined solely to questions of Article III
jurisdiction, they would be in tension with the broader
interpretation established in Sinochem. 549 U.S. at 431.
Neither of those decisions specifically dealt with the issue of
personal jurisdiction, however, and neither decision thus
stands in the way of our adhering to Sinochem with respect to
                               16
a question of personal jurisdiction. Those decisions instead
addressed the applicability of Steel Co. to a question of
statutory jurisdiction, not personal jurisdiction, concluding that
the Steel Co. rule did not govern in the specific circumstances.
See Chalabi, 543 F.3d at 728; Kramer, 481 F.3d at 791.
(Insofar as the continuing vitality of those decisions may be
open to question even in the sphere of statutory jurisdiction in
which they arose, see infra at 1-7 (Edwards, J., concurring), we
need not resolve that issue in this case.)

     While Sinochem draws an equivalence between questions
of subject-matter jurisdiction and questions of personal
jurisdiction for purposes of the Steel Co. rule of priority, there
is an important distinction in the way a jurisdictional question
arises in the two contexts. A defect of subject-matter
jurisdiction is non-waivable, such that a court must always
assure itself of its subject-matter jurisdiction regardless of
whether a party has raised a challenge. See Ins. Corp. of
Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
702 (1982). With personal jurisdiction, by contrast, a
defendant can waive an objection by failing to raise the issue.
See, e.g., id. at 703-04. A court thus generally has no obligation
to raise a question of personal jurisdiction on its own. See
Anger v. Revco Drug Co., 791 F.2d 956, 958 (D.C. Cir. 1986).

     That in turn has implications for the operation of Steel
Co.’s rule of priority.      With regard to subject-matter
jurisdiction, a court must assure itself of the existence of
subject-matter jurisdiction before reaching the merits
regardless of whether a party raises a jurisdictional challenge.
With regard to personal jurisdiction, however, a court is
obligated to address the issue of personal jurisdiction before
reaching the merits only if an objection as to the court’s
personal jurisdiction has been asserted.
                              17
    Here, the Banks raised a challenge to the district court’s
personal jurisdiction in the case containing the claims against
them, seeking dismissal on that ground. And while the Banks
could have waived that objection on appeal, see World Wide
Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1164
(D.C. Cir. 2002), they instead reiterated the objection. See
Banks’ Appellee Br. 5 n.3.

     Meanwhile, in the case containing the claims against
Hezbollah, the defendants never entered an appearance. Their
absence imposed an independent obligation on the district court
to satisfy itself of its personal jurisdiction before entering a
default judgment against a missing party. See Mwani v. bin
Laden, 417 F.3d 1, 6 (D.C. Cir. 2005); 10A Charles Alan
Wright et al., Federal Practice and Procedure § 2682 (3d ed.
1998). As a result, the personal jurisdiction issue was live in
that case as well.

     In neither case, however, did the district court address
personal jurisdiction before dismissing the ATA claims or the
ATS claims. Insofar as the grounds on which those claims
were dismissed amounted to dispositions on the merits, the
district court, per Steel Co. and Sinochem, should have first
assured itself of its personal jurisdiction over the defendants.
We thus proceed to consider next whether the grounds for
dismissing those claims were dispositions on the merits—first,
with respect to the ATA claims, and then, with respect to the
ATS claims.

                              C.

     The district court’s dismissal of the ATA claims under the
statute’s act-of-war exception could be appropriate only if the
disposition on that ground did not amount to a merits
determination. The Banks contend that the act-of-war
                                18
exception goes to a district court’s subject-matter jurisdiction,
not the merits, and Amicus agrees that the exception’s
applicability poses a jurisdictional question. We disagree and
conclude that the act-of-war exception presents a merits issue,
not a jurisdictional one. As a result, the district court could not
rely on the exception without first establishing personal
jurisdiction.

     The Supreme Court has articulated a “readily
administrable bright line” for determining whether a statutory
limitation like the act-of-war exception qualifies as
jurisdictional. Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S.
145, 153 (2013). Unless Congress “clearly states that a
threshold limitation on a statute’s scope shall count as
jurisdictional,” we generally treat the limitation as
non-jurisdictional. Arbaugh v. Y&H Corp., 546 U.S. 500,
515-16 (2006). Congress, though, need not “incant magic
words” to establish a limitation’s jurisdictional character.
Sebelius, 568 U.S. at 153. We look both to the text of the
limitation and to the statutory context to discern Congress’s
intent. See Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 162,
164-65 (2010).

     The Anti-Terrorism Act establishes a civil remedy for
American nationals injured by acts of “international terrorism”
committed outside of the United States. 18 U.S.C. § 2333(a).
An act qualifies as “international terrorism” only if it violates
a domestic criminal law (either state or federal) and intends to
coerce a civilian population, influence government policy, or
affect government conduct. Id. § 2331(1).

     Even if an act fits that definition, the ATA’s act-of-war
exception provides that “[n]o action shall be maintained under
section 2333 . . . for injury or loss by reason of an act of war.”
Id. § 2336(a). “Act of war” is a term of art under the statute,
                                19
defined to include “any act occurring in the course of” any of
the following: a “declared war,” an “armed conflict, whether
or not war has been declared, between two or more nations,” or
an “armed conflict between military forces of any origin.” Id.
§ 2331(4).

     The text of the act-of-war exception does not “speak in
jurisdictional terms or refer in any way to the jurisdiction of the
district courts.” Zipes v. Trans World Airlines, Inc., 455 U.S.
385, 394 (1982). Nor does the statutory context suggest that,
notwithstanding the absence of a “clear jurisdictional label,”
the exception “nonetheless impose[s] a jurisdictional limit.”
Reed Elsevier, 559 U.S. at 162.

     For instance, the act-of-war exception is not situated in a
statutory section addressing jurisdiction, which can be an
important sign of jurisdictional status. Id. at 164. There is a
separate ATA provision entitled “Jurisdiction and venue.” 18
U.S.C. § 2334; see id. § 2338 (granting federal district courts
exclusive jurisdiction). The act-of-war exception is found in a
section entitled “Other limitations,” along with provisions
pertaining to non-jurisdictional limitations on discovery and to
stays of ATA actions pending criminal proceedings. Id.
§ 2336.

     Section 2336’s “Other limitations” are appended to—and
naturally coupled with—the immediately preceding section,
entitled “Limitations of actions.” Id. § 2335. Section 2335 sets
out the statute of limitations governing ATA claims. And
given that statutes of limitations “ordinarily are not
jurisdictional,” Sebelius, 568 U.S. at 154, Congress’s pairing
of the statute of limitations with the act-of-war exception
indicates that the exception likewise is non-jurisdictional.
                               20
     Amicus notes that, even if the act-of-war exception is not
housed in a provision pertaining to jurisdiction, the exception
cross-references Section 2333, and subsection (a) of the latter
provision is entitled “Action and jurisdiction.” 18 U.S.C.
§ 2333(a). That subsection, in accordance with its title, serves
two purposes: it both establishes the availability of a civil
action under the ATA and vests jurisdiction in district courts
over such an action. The cross-reference pertains to the former
(“action”), not the latter (“jurisdiction”), by forging an
exception for acts of war to the availability of an action to
recover for “an act of international terrorism.” Id. The
cross-reference thus affords no basis for concluding that the
act-of-war exception is jurisdictional.

     The act-of-war exception’s function in the ATA, including
its association with Section 2333(a), reinforces the exception’s
non-jurisdictional character. The exception, along with the
definitions in Section 2331, tells us “what conduct [the ATA]
prohibits,” which is typically “a merits question,” not a
jurisdictional one. Morrison, 561 U.S. at 254. And the
exception becomes salient only if the act in question qualifies
as “an act of international terrorism” in the first place. 18
U.S.C. § 2333(a). Whether the challenged conduct qualifies as
“an act of international terrorism” plainly goes to the merits of
an ATA action. So too, presumably, is the case with an
associated exception that exempts conduct from the primary
category of international terrorism.

     Amicus contends that, even if the act-of-war exception is
non-jurisdictional, it still presents a non-merits, threshold
question that can be considered before personal jurisdiction.
It is true that Steel Co.’s rule of priority does not invariably
require considering a jurisdictional question before any non-
jurisdictional issue. Rather, courts may address certain non-
jurisdictional, threshold issues before examining jurisdictional
                                21
questions. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
585 (1999); Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005).

     But an issue can qualify as a threshold one of that kind
only if it can occasion a “[d]ismissal short of reaching the
merits.” Sinochem, 549 U.S. at 431. In other words, a
threshold question, while non-jurisdictional, still is not a merits
question. Examples of such threshold questions include
abstention, forum non conveniens, third-party standing, and the
so-called Totten rule (requiring dismissal at the outset of an
action that depends on an “espionage relationship with the
Government”). See Tenet, 544 U.S. at 6 n.4, 8; Ruhrgas, 526
U.S. at 585; Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d
1342, 1348-49 (D.C. Cir. 2007).

     The ATA’s act-of-war exception has little in common with
those examples. Determining whether the exception applies to
a plaintiff’s claim requires grappling with the central question
under the ATA: whether an act of terrorism (or act of war)
occurred. That determination amounts to an “adjudication of
the cause,” to which a court cannot proceed without first
satisfying itself of its jurisdiction over the case. Sinochem, 549
U.S. at 431. The act-of-war exception thus does not qualify as
a threshold issue that may be considered before establishing the
court’s jurisdiction.

     Amicus gets no further in attempting to align the
act-of-war exception with the political-question doctrine. The
political-question doctrine speaks to a claim’s justiciability,
and we have previously held that it presents at least a
non-merits, threshold issue that can be addressed before
jurisdictional issues. See Hwang Geum Joo v. Japan, 413 F.3d
45, 47-48 (D.C. Cir. 2005). The point of the doctrine is to
identify questions that courts should not resolve—because, for
instance, there is a “textually demonstrable constitutional
                               22
commitment of the issue” to another branch of government or
a “lack of judicially discoverable and manageable standards for
resolving” them. Zivotofsky ex rel. Zivotofsky v. Clinton, 566
U.S. 189, 195 (2012).

     Here, by contrast, there is no dispute that a court must
determine whether the circumstances involve an act of war
within the meaning of the statutory exception.               That
interpretive exercise, unlike with a non-justiciable political
question, “is what courts do.” Id. at 201. There is then no
reason to treat the act-of-war exception as involving a threshold
issue just because the political-question doctrine presents at
least a threshold issue. Rather, the exception presents a merits
question, one that the district court could not reach before
assuring itself of its personal jurisdiction over the defendants.

                               D.

     We turn, finally, to the district court’s dismissal of the
ATS claims. The Alien Tort Statute vests district courts with
“original jurisdiction of any civil action” brought “by an alien
for a tort only, committed in violation of the law of nations.”
28 U.S.C. § 1350. The Supreme Court has established that “the
presumption against extraterritoriality” governs the ATS’s
reach. Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108,
124 (2013). ATS claims involving extraterritorial activity can
“displace the presumption” only if “the claims touch and
concern the territory of the United States . . . with sufficient
force.” Id. at 124-25.

    Here, the non-American plaintiffs sued the Banks under
the ATS, alleging that the Banks’ transfer of funds to
Hezbollah aided and abetted Hezbollah’s challenged actions.
Applying the presumption against extraterritoriality as set out
in Kiobel, the district court dismissed the ATS claims on the
                                23
ground that Hezbollah’s rocket attacks did not sufficiently
“touch and concern” the United States. Kaplan, 961 F. Supp.
2d at 205. The court considered its disposition on that ground
to be a dismissal “for lack of subject matter jurisdiction.” Id.
at 204.

     On appeal, the parties appear to assume that the question
of extraterritoriality, in the context of the ATS, goes to
subject-matter jurisdiction. If so, the district court could opt to
resolve the claims on that jurisdictional ground without first
assessing whether it had personal jurisdiction over the
defendants: nothing in Steel Co. establishes an order of priority
as between alternative jurisdictional grounds for disposing of a
case. See Ruhrgas, 526 U.S. at 584. Because the parties
assume that extraterritoriality is a jurisdictional issue under the
ATS and that the district court thus was free to rest its dismissal
on that ground, their arguments on appeal principally concern
whether the district court correctly resolved the
extraterritoriality question.

     The Banks, however, also specifically preserved an
argument that, as corporations, they cannot be held liable under
the ATS. In doing so, they noted that the Supreme Court had
granted review to consider that question in Jesner v. Arab
Bank, PLC. The Court has since issued its decision in Jesner,
holding that “foreign corporations may not be defendants in
suits brought under the ATS.” 138 S. Ct. 1386, 1407 (2018).

     There is no dispute that the Banks are foreign corporations
(Bank Saderat Iran is based in Iran, and Bank Saderat PLC, a
wholly-owned subsidiary, is incorporated in England and
Wales). Banks’ Appellee Br. iii. In the wake of the Court’s
decision in Jesner, the Banks submitted a supplemental letter
under Federal Rule of Appellate Procedure 28(j), contending
that we could affirm the dismissal of the ATS claims against
                               24
the Banks based on Jesner. The plaintiffs did not submit a
letter in response, and have not disputed that the Banks are
foreign corporations for purposes of the Jesner rule.

     Although the district court dismissed the ATS claims
against the Banks based on the presumption against
extraterritoriality, we have latitude to affirm the court’s
judgment on an alternative ground, i.e., that the ATS does not
allow for claims against foreign corporations. See EEOC v.
Aramark Corp., 208 F.3d 266, 268 (D.C. Cir. 2000). But under
Steel Co. and Sinochem, we can resolve the ATS claims on that
ground only if it is either a jurisdictional limitation or a
threshold, non-merits limitation like forum non conveniens or
abstention. If, on the other hand, Jesner’s bar against foreign
corporate liability involves a merits issue, the issue could be
reached only after assuring the existence of personal
jurisdiction.

     We conclude that Jesner’s bar on foreign corporate
liability under the ATS involves a non-merits disposition, such
that we can rely on it without first assuring the existence of
personal jurisdiction. See Pub. Citizen, 486 F.3d at 1348-49.
In other words, the ATS bar against foreign corporate liability
“[a]t a minimum” is a threshold basis for dismissal, which is
enough to enable us to rest our decision on that ground. Id.

     Jesner’s exclusion of foreign corporate liability under the
ATS bears the hallmarks of a threshold limitation as opposed
to a merits one. The limitation has the effect in ATS cases of
“denying audience to [a] case on the merits.” Id. (quoting
Sinochem, 549 U.S. at 431). And it is “designed not merely to
defeat the asserted claims, but to preclude judicial inquiry.” Id.
at 1347 (quoting Tenet, 544 U.S. at 6 n.4).
                                 25
     The Court’s analysis in Jesner is instructive in that regard.
The Court explained that, whereas the object of the ATS is to
“promote harmony in international relations,” allowing ATS
actions against foreign corporations could have the “opposite”
effect. 138 S. Ct. at 1406. For instance, Arab Bank, the
defendant in Jesner, is “a major Jordanian financial
institution.” Id. And the ATS litigation against Arab Bank,
which had lasted for 13 years, had “caused significant
diplomatic tensions with Jordan, a critical ally in one of the
world’s most sensitive regions.” Id. (internal quotation marks
omitted). “As demonstrated by this litigation,” the Court
reasoned, “foreign corporate defendants create unique
problems” vis-à-vis the conduct of foreign relations. Id. at
1407.

     The Court barred ATS actions against foreign corporations
to avoid the “serious foreign policy consequences” entailed by
permitting such suits to proceed. Id. (internal quotation marks
omitted). In doing so, the Court indicated it was acting on
concerns about the pendency of ATS litigation against foreign
corporations at all, not merely about the ultimate prospect of a
judgment against a foreign corporation on the merits. In Jesner
itself, the Court observed, the pendency of the litigation had
caused “prolonged diplomatic disruptions.” Id. And the bar
against foreign corporate liability established in Jesner would
afford a means of disposing of such cases at the outset, without
the need to extend the proceedings for a more involved inquiry
into questions like the “touch and concern” test for
extraterritoriality. See id. at 1399 (plurality); id. at 1411 (Alito,
J., concurring in part and concurring in the judgment). The bar
as understood in Jesner thus aims to “preclude judicial inquiry”
altogether, “not merely to defeat [ATS] claims” on the merits.
Tenet, 544 U.S. at 6 n.4.
                               26
     The interplay between the corporate liability and
extraterritoriality issues in Jesner reinforces the
foreign-corporate-liability bar’s threshold character. The
Court previously described the extraterritoriality rule for ATS
cases as involving, not whether a complaint “state[s] a proper
claim under the ATS,” but instead “whether a claim may reach
conduct occurring in the territory of a foreign sovereign.”
Kiobel, 569 U.S. at 115; see Pub. Citizen, 486 F.3d at 1348
(distinguishing between a “merits dismissal for failure to state
a claim” and a threshold, non-merits disposition). And the
Court observed that, although “the question of extraterritorial
application” is typically a “merits question, not a question of
jurisdiction,” the “ATS, on the other hand, is strictly
jurisdictional.” Kiobel, 569 U.S. at 116 (internal quotation
marks omitted). The Court, then, treated extraterritoriality in
the ATS context as a jurisdictional matter. See Doe v.
Drummond Co., 782 F.3d 576, 584 (11th Cir. 2015) (holding
that extraterritoriality under ATS is a jurisdictional issue);
Mastafa v. Chevron Corp., 770 F.3d 170, 179 (2d Cir. 2014)
(same); Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516,
524, 531 (4th Cir. 2014) (same).

     In Jesner, the extraterritoriality issue had been raised, and
the government urged the Court to remand the case for
resolution of that issue. See 138 S. Ct. at 1398-99 (plurality).
But the Court declined to do so, instead holding that foreign
corporations are not subject to liability under the ATS. Insofar
as extraterritoriality presents a jurisdictional issue in the
context of the ATS, the Court could have bypassed that issue
and reached the question of foreign corporate liability only if
the latter issue were a non-merits one.

     For those reasons, we conclude that Jesner’s bar against
foreign corporate liability “[a]t a minimum,” is a “non-merits
threshold ground for dismissal” in the context of the ATS, on
                               27
which we can rely without resolving the existence of personal
jurisdiction. Pub. Citizen, 486 F.3d at 1349; cf. Doe, 782 F.3d
at 584 (holding that corporate liability under the ATS is a
jurisdictional question); Mastafa, 770 F.3d at 179 (same). We
therefore affirm the district court’s dismissal of the ATS claims
against the Banks based on the Supreme Court’s decision in
Jesner.

                      *    *   *    *   *

    For the foregoing reasons, we affirm the district court’s
dismissal of the plaintiffs’ ATS claims against the Banks. We
vacate the district court’s judgment dismissing the plaintiffs’
ATA claims against Hezbollah and Bank Saderat PLC, and
remand for the district court to determine whether it has
personal jurisdiction over the defendants.

                                                    So ordered.
     EDWARDS, Senior Circuit Judge, concurring: I join the
opinion of the court in full. As Judge Srinivasan cogently
explains, Sinochem International Co. Ltd. v. Malaysia
International Shipping Corp., 549 U.S. 422 (2007), confirms
that the rule of priority the Supreme Court announced in Steel
Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998),
extends to personal jurisdiction.

     I write separately to express my concern over two
decisions of this court – Kramer v. Gates, 481 F.3d 788 (D.C.
Cir. 2007), and Chalabi v. Hashemite Kingdom of Jordan, 543
F.3d 725 (D.C. Cir. 2008) – that appear to interpret Steel Co.’s
rule that a court must resolve jurisdictional issues prior to
reaching the merits to apply only to “those primary issues
related to Article III jurisdiction.” Kramer, 481 F.3d at 791; see
also Chalabi, 543 F.3d at 728 (“Steel Co. requires that we
prioritize the jurisdictional issue only when the existence of
Article III jurisdiction is in doubt . . . .”). Our decision today
properly distinguishes Chalabi and Kramer. Nevertheless, I
think it is important to point out that Chalabi and Kramer, and
the authorities on which they rely, do not follow the core
principles that we have applied in reaching judgment in this
case.

     The references to “Article III jurisdiction” in the Chalabi
and Kramer decisions seem to be limited to case-and-
controversy requirements under Article III (e.g., standing and
mootness), as distinguished from questions relating to
“statutory jurisdiction” (e.g., jurisdictional time limits). Thus,
in Kramer, we held that “issues related to . . . a statutory limit
(even one classified as jurisdictional for many purposes)” are
not primary under Steel Co. 481 F.3d at 791; see also Chalabi
(stating that “[t]here is no Article III question here: [the
plaintiff’s claim] concerns only the limits of our statutory
jurisdiction under the . . . Act”). The judgments in these cases
appear to be correct when viewed with reference to the law
extant at the time when the decisions were issued. The law has
                                2
evolved, however, so I doubt that we can now say that a lack
of statutory jurisdiction need not be a barrier to deciding issues
on the merits.

     Conceptually, this is unsurprising. Under Article III,
jurisdiction is limited both by the bounds of the “judicial
power” as articulated in Article III, § 2, and by the extent to
which Congress has vested that power in the lower courts, see
U.S. CONST. art. III, § 1. The distinction between statutory
limitations on subject-matter jurisdiction and other Article III
jurisdictional limitations is tenuous, as both limitations arise
from Article III.

     It is true that the Supreme Court has, at times, discussed
the requirements of subject-matter jurisdiction in a manner that
separates statutory authorization from constitutional
authorization. See, e.g., Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986) (“Federal courts are not courts
of general jurisdiction; they have only the power that is
authorized by Article III of the Constitution and the statutes
enacted by Congress pursuant thereto.”); Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (“[Courts]
possess only that power authorized by Constitution and
statute.”). But this merely highlights that both requirements
exist; it does not intimate that the requirements delineated in a
statutory grant of jurisdiction are any less a constraint on
courts’ power than the requirements described directly in the
Constitution.

    In any event, the Kramer/Chalabi interpretation of Steel
Co. appears to conflict with current Supreme Court precedent.
That precedent indicates that the existence of statutory subject-
matter jurisdiction, like other jurisdictional requirements, must
be established before a court may reach an issue on the merits.
The Court has not distinguished between statutory and Article
                               3
III subject-matter jurisdiction for this purpose. The Court
makes this point clear in Sinochem:

         [Steel Co.] clarified that a federal court generally
    may not rule on the merits of a case without first
    determining that it has jurisdiction over the category
    of claim in suit (subject-matter jurisdiction) and the
    parties (personal jurisdiction). Without jurisdiction
    the court cannot proceed at all in any cause; it may not
    assume jurisdiction for the purpose of deciding the
    merits of the case.

         While Steel Co. confirmed that jurisdictional
    questions     ordinarily    must   precede    merits
    determinations in dispositional order, Ruhrgas held
    that there is no mandatory sequencing of
    jurisdictional issues. In appropriate circumstances,
    Ruhrgas decided, a court may dismiss for lack of
    personal jurisdiction without first establishing
    subject-matter jurisdiction.

        Both Steel Co. and Ruhrgas recognized that a
    federal court has leeway to choose among threshold
    grounds for denying audience to a case on the merits.
    Dismissal short of reaching the merits means that the
    court will not proceed at all to an adjudication of the
    cause.

549 U.S. at 430–31 (citations and internal quotation marks
omitted). The Court’s citation to Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574 (1999), is significant. In that case, the lower
court failed to decide a statutory jurisdiction issue before
addressing personal jurisdiction. Id. at 580–81. In holding that
there is no mandatory ordering of jurisdictional issues, the
Court clearly treated the issue of whether a claim fits within a
                                 4
statutory grant of subject-matter jurisdiction as being covered
by the Steel Co. rule of priority.

     Thus, under Steel Co., a court without jurisdiction lacks
“power to adjudicate the case” and, thus, may not act to decide
the merits of the case. See 523 U.S. at 89. This principle applies
equally whether jurisdiction is lacking because there is no case
or controversy, or because Congress has declined to grant a
lower court jurisdiction over a category of cases. Just as a
plaintiff’s lack of standing deprives the court of power to say
what the law is, so too does Congress’s decision to withhold
power from the court. See Ex parte McCardle, 74 U.S. 506,
514 (1868) (“Jurisdiction is power to declare the law, and when
it ceases to exist, the only function remaining to the court is
that of announcing the fact and dismissing the cause.”).

     It is a bit of an aside, but not insignificant, that the Court’s
decision in Sinochem also expanded upon Steel Co.’s
observation that there is no “absolute purity” in the rule that
jurisdiction is always an antecedent question. Steel Co., 523
U.S. at 101. In fleshing out this point, Sinochem holds that
forum non conveniens – a nonjurisdictional issue – can be
decided prior to matters of jurisdiction. The Court explained
that

         [a] forum non conveniens dismissal denies
    audience to a case on the merits; it is a determination
    that the merits should be adjudicated elsewhere. . . . A
    district court therefore may dispose of an action by a
    forum non conveniens dismissal, bypassing questions
    of subject-matter and personal jurisdiction, when
    considerations of convenience, fairness, and judicial
    economy so warrant.

549 U.S. at 432 (citations and internal quotation marks
                                5
omitted). The Court held that “a district court has discretion to
respond at once to a . . . forum non conveniens plea, and need
not take up first any other threshold objection [such as] . . .
whether it has authority to adjudicate the cause.” Id. at 425.

    No one would contend that forum non conveniens
    constitutes a jurisdictional ground for dismissal.
    Indeed, the Sinochem decision refers to a district
    court's “discretion to” dismiss pursuant to the
    doctrine. Sinochem thus firmly establishes that certain
    non-merits, nonjurisdictional issues may be addressed
    preliminarily, because [j]urisdiction is vital only if the
    court proposes to issue a judgment on the merits.

Pub. Citizen v. U.S. Dist. Court for D.C., 486 F.3d 1342, 1348
(D.C. Cir. 2007) (citations and some quotation marks omitted).

     It is unclear whether there is any meaningful symmetry
between “non-merits, nonjurisdictional” and “jurisdictional”
grounds for dismissal. Judgments on forum non conveniens, for
example, are reviewed pursuant to a deferential abuse of
discretion standard, Piper Aircraft Co. v. Reyno, 454 U.S. 235,
257 (1981), whereas judgments on jurisdictional issues are
reviewed de novo, Mwani v. bin Laden, 417 F.3d 1, 6 (D.C.
Cir. 2005). And district court judges are not obliged to decide
non-merits, nonjurisdictional issues such as forum non
conveniens before addressing the merits. Therefore, if one
assumes that Steel Co. deals solely with jurisdiction
limitations, then forum non conveniens and other non-merits,
nonjurisdictional issues can be viewed as an exception to Steel
Co.’s rule of priority.

     In addition, there are some “non-merits threshold
ground[s] for dismissal” that have the attributes of
jurisdictional issues. Pub. Citizen, 486 F.3d at 1348–49
                                6
(pondering whether dismissal pursuant to the enrolled bill rule
enunciated in Marshall Field & Co. v. Clark, 143 U.S. 649
(1892), is a “jurisdictional bar”). It is unclear whether these
issues should be treated as “jurisdictional” or “non-merits,
nonjurisdictional” issues. The difference is that a court cannot
proceed to the merits if there are jurisdictional issues to be
addressed; however, a court need not address non-merits,
nonjurisdictional issues before deciding the merits.

     The Steel Co. rule is thus now best understood to require
the federal courts to decide jurisdictional issues first before
reaching the merits, unless dismissal is based on a threshold
non-merits, nonjurisdictional ground. See Sinochem, 549 U.S.
at 432. And, as the Court explained in Sinochem, there is no
priority given to “Article III jurisdiction” over “statutory
jurisdiction.” Id. at 430–31. Indeed, a court may decide a non-
merits, nonjurisdictional issue before a jurisdictional issue if it
will dispose of the case. This current state of the law does not
fit with the Kramer/Chalabi interpretation of Steel Co.

     There is one final point worth mentioning with regard to
the Kramer/Chalabi application of Steel Co. Both Kramer and
Chalabi relied on a footnote in Steel Co. that they say
“explicitly recognized the propriety of addressing the merits
where doing so made it possible to avoid a doubtful issue of
statutory jurisdiction.” Kramer, 481 F.3d at 791; Chalabi, 543
F.3d at 728. There are two problems with this analysis. First,
the footnote in Steel Co. that is cited by Kramer and Chalabi
discusses “statutory standing,” not “statutory jurisdiction.”
Steel Co., 523 U.S. at 97 & n.2. And, as the Court explained in
Steel Co., “statutory standing” is quite different from “statutory
jurisdiction.” See id. at 91–92 (discussing statutory standing
and statutory jurisdiction). “Statutory standing,” as the term
was used in Steel Co., and other cases, concerned a party’s
cause of action, not the court’s jurisdiction.
                                7

     Second, in Lexmark International, Inc. v. Static Control
Components, Inc., 134 S. Ct. 1377 (2014), the Court clarified
the law in explaining that “statutory standing,” which was
formerly associated with the question as to whether a plaintiff’s
claim fell within a statute’s “zone of interests,” is a misnomer.
“Statutory standing,” the Court explained, is a “misleading”
reference to cause of action, and “cause of action” “does not
implicate subject-matter jurisdiction.” Id. at 1387 n.4. Because
“statutory standing” issues are not jurisdictional at all, they
obviously fall outside of the Steel Co. rule of priority for
jurisdictional issues. Again, this current state of the law cannot
be squared with the Kramer/Chalabi understanding of Steel
Co. and the rule of priority emanating from that decision.

      It may be that Kramer and Chalabi intended only to
differentiate between types of “statutory jurisdiction” issues,
drawing a line between those that must be decided first, such
as federal question or diversity jurisdiction, and those that need
not, such as waivers of sovereign immunity under a specific
statute. See Kramer, 481 F.3d at 791 (skipping over sovereign
immunity issue); Chalabi, 543 F.3d at 728 (skipping over
foreign sovereign immunity issue). But see FDIC v. Meyer, 510
U.S. 471, 475 (1994) (“Sovereign immunity is jurisdictional in
nature.”). And it may be that for reasons specific to the issues
in those cases, their outcomes can be squared with the case law
described above. But at the very least, the court’s language
interpreting Steel Co. appears to run head on into Supreme
Court precedent. At an appropriate opportunity, the court
should consider whether, in light of Sinochem and Lexmark,
the Kramer/Chalabi distinction between statutory and Article
III jurisdictional issues can be sustained.
