The Good and the Bad of King v. Bon Charge

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The Supreme Court’s latest personal jurisdiction decision, Fuld v. Palestine Liberation Organization (2025), left the lower courts to work out what exactly the Fifth Amendment due process analysis entails. The emerging consensus is that those questions can be avoided as long as the facts of a case meet the preexisting test for personal jurisdiction under the Fourteenth Amendment. That insight was adopted and applied last December in King v. Bon Charge, a District of Delaware decision written by Third Circuit judge Stephanos Bibas sitting by designation. Likely due to its author, King has already been cited by several other district courts for this useful proposition.

Yet despite acknowledging the wisdom of restraint in adopting this status quo approach, the decision then goes out of its way to fully embrace the theory propounded by Professor Stephen Sachs that the Fifth Amendment imposes no limit on the assertion of personal jurisdiction. (Judge Bibas had invited Sachs to submit an amicus filing in the case, which Sachs did.)

It is frustrating to see smart judges present a single professor’s idiosyncratic and underdeveloped theories as objectively true. Last summer I spent several posts outlining the shortcomings of Sachs’s argument that the Fifth Amendment imposes no limits on personal jurisdiction. Instead of repeating those arguments in full here, I want to highlight a few assertions in King that I find particularly troublesome.

Questionable Quotations from Picquet v. Swan

Sachs’s theory that Congress could displace any preexisting limit on personal jurisdiction rests almost entirely on one trial court decision, Picquet v. Swan, which was written by Justice Story while riding circuit in 1828. Setting aside decisions about the exercise of personal jurisdiction by state courts (which are not directly relevant to the jurisdictional limits of federal courts), Judge Bibas’s adoption of Sachs’s theory similarly rests principally on Picquet (and on Sachs’s scholarship). Like Sachs, King overstates what Picquet actually said.

According to King, “Justice Story explained [in Picquet] that Congress could order ‘a subject of England, or France, or Russia … summoned from the other end of the globe to obey our process, and submit to the judgment of our courts,’ even though such a statute might violate ‘principles of public law, public convenience, and immutable justice.’” This is not an accurate summary of Picquet.

The first partial quotation comes from dictum in Picquet in which Story summarizes and then rejects a party’s argument. That passage reads in full:

The argument supposes, that as a general jurisdiction is given in cases, where an alien is party, if he is not an inhabitant of the United States, and has not any property within it, (for to this extent it must reach,) still he is amenable to the jurisdiction of any circuit court, sitting in any state in this Union. So that a subject of England, or France, or Russia, having a controversy with one of our own citizens, may be summoned from the other end of the globe to obey our process, and submit to the judgment of our courts. Such an intention, so repugnant to the general rights and sovereignty of other nations, ought not to be presumed, unless it is established by irresistible proof.

In other words, Story recognized the extremity of the argument that jurisdiction could be asserted over foreigners with no territorial connection to the United States, and he therefore refused to interpret the Process Acts to permit such jurisdiction. While he did not say Congress could not have done so, he also did not affirmatively say (even in dicta) that Congress could. He simply avoided the question.

The second partial quotation in King comes from the next page in Picquet, when Story is talking about attachment jurisdiction—what came to be known as quasi in rem jurisdiction of the second type, but which was still controversial in 1828. In that passage, Story refused to interpret the Process Acts as permitting reliance on Massachusetts’s embrace of attachment jurisdiction, which would be contrary to the “principles of public law, public convenience, and immutable justice” on which “the policy of the judiciary act of 1789 (chapter 20) [was] founded.” Note that these two passages in Picquet are talking about two different ideas: jurisdiction when there is no property within the forum, and jurisdiction when there is property within the forum. I do not understand why Sachs or judges who rely on his scholarship continue to smush together these two disparate passages in Picquet.

Regardless, even on the most sympathetic reading, Story in Picquet did not “explain”—even in dicta—that Congress could authorize unlimited worldwide jurisdiction over defendants.

The Irrelevance of Toland and Ex Parte Graham

Even if Picquet did say what Sachs and King say it said, an argument based on dicta in a single trial court opinion is not particularly compelling. So like Sachs, King also cites two other cases alongside Picquet: Ex parte Graham and Toland v. Sprague.

Ex parte Graham was a purely domestic case in which the trial court (in a decision written by Justice Washington riding circuit) interpreted the Judiciary Act as limiting the district courts’ territorial jurisdiction to their respective districts, unless Congress were to expressly provide otherwise. It thus stands for the unremarkable proposition that Congress could allow district courts to assert nationwide personal jurisdiction if it said they could. Ex parte Graham says nothing about Congress’s authority to authorize unlimited personal jurisdiction beyond the nation’s borders.

Toland v. Sprague considered the same procedural question as Picquet: whether a federal court sitting at law could rely through the Process Act on a state’s adoption of attachment jurisdiction despite section 11 of the Judiciary Act (which did not authorize attachment jurisdiction). As I have previously explained:

The Supreme Court [in Toland] agreed with Picquet that foreign attachment was a more unusual form of establishing personal jurisdiction that had to be specifically authorized by Congress. It thus opined that Pennsylvania’s statute approving foreign attachment could not be applied by the federal circuit court despite the Process Act, at least in the absence of a more explicit federal statute. …

Toland thus suggests that Congress can legislate quasi in rem jurisdiction, or other forms of service within the United States that cross district boundaries. It says nothing about whether Congress could authorize personal jurisdiction when neither the defendant nor his property was present within the district, or in the absence of any other nexus to the United States. Further, while Toland agreed with Picquet’s interpretation of section 11 and the Process Act, there is no indication that the Supreme Court was affirmatively adopting Story’s aside about requiring “irresistible proof” of congressional intent to legislate unlimited personal jurisdiction (or the suggestion, if Story meant to imply it, that such a statute would be enforceable). If anything, the Court’s adoption of Picquet’s reasoning “generally” and “in a condensed form” suggests the opposite.

Not only that, but this entire discussion of attachment jurisdiction in Toland was itself dicta. Because Sprague showed up to claim his property and answered the suit on the merits, he waived the personal jurisdiction objection. … In fact, four Justices noted that the Court’s entire discussion of attachment jurisdiction was unnecessary and not part of the ratio decendi.

In short, the Supreme Court did not—and has never—endorsed the idea that Congress can legislate any and all personal jurisdiction it likes. The closest it has come is contentious dicta in a single case that endorsed the reasoning of a lower court that, in its own dicta, may have suggested Congress could pass such a statute.

Conclusion

The sum total of this case law is a far cry from supporting the sweeping propositions advanced in King that, as an original matter, there was no limit on the personal jurisdiction that Congress could authorize for the federal courts. These cases do not support, for example, statements like this:

Even so, judges acknowledged that Congress could, under its enumerated powers, enact a statute expressly directing federal courts to disregard general-law limits on jurisdiction. See, e.g., Toland, 37 U.S. (12 Pet.) at 328; Picquet, 19 F. Cas. at 611; Ex parte Graham, 10 F. Cas. 911, 912–13 (C.C.E.D. Pa. 1818) (Washington, J.).

Or this:

Even so, the historical record is clear: As an original matter, the Fifth Amendment’s Due Process Clause did not limit Congress’s ability to authorize federal courts to exercise personal jurisdiction over defendants located outside the territorial limits of the United States.

The historical record is not clear. Sachs, Bibas, and other like-minded scholars and jurists have not identified one single case in which a judge clearly said, even in dicta, that Congress could legislate worldwide personal jurisdiction in the absence of any territorial connection to the United States. That is a sweeping power to claim for Congress, and it merits clear affirmative evidence.

I hope that when judges (and their law clerks) are confronted with Fuld questions that cannot be resolved easily by using the Fourteenth Amendment personal jurisdiction analysis, they do not simply repeat these erudite-sounding but ultimately erroneous characterizations of Picquet, Toland, and Ex parte Graham. The original understanding of personal jurisdiction in federal courts has not yet been definitively established. Given the methodological challenges of originalism, perhaps it never can be. For now, at least, there is no easy out to the muddle left by the Supreme Court’s decision in Fuld.