Fifth Circuit Issues En Banc Opinion on Personal Jurisdiction over Foreign Defendants
August 17, 2022
The Fifth Circuit has issued an important en banc opinion on foreign defendants, personal jurisdiction, and the Fifth Amendment Due Process Clause. The court held in Douglass v. Nippon Yusen Kabushiki Kaisha that the Fifth Amendment Due Process Clause mirrors the Fourteenth Amendment Due Process Clause, except that the relevant sovereign is the United States as a whole, rather than a particular state. That is bad news for the plaintiffs in Douglass who used a federal statute to sue a foreign corporation with many contacts to the United States – just not contacts that gave rise to the litigation nor contacts that allowed for general jurisdiction. Because the Fifth Amendment – like the Fourteenth – requires either specific or general jurisdiction, it accordingly barred the exercise of personal jurisdiction, the majority held.
The dissenting opinion in Douglass took an originalist approach to the Fifth Amendment, arguing that due process imposes no limits on personal jurisdiction except those that Congress may choose to impose. I agree with that argument. Looking ahead to how the Supreme Court might resolve the issue in Douglass (assuming, of course, that the case reaches the Supreme Court) note that methodology is important. Key Fourteenth Amendment decisions on personal jurisdiction such as International Shoe v. Washington and Daimler AG v. Baumann are not based on an originalist or textualist interpretation of due process. However, Justices Gorsuch and Thomas (at a minimum) are open to rethinking due process along originalist lines (see Ford Motor Co. v. Montana Eighth District Court). The Court will also hear argument in early November in Mallory v. Norfolk Southern Railway. Not surprisingly, some of the Mallory briefing focuses on originalism. The approach the Court takes in Mallory is likely to help determine how it eventually interprets the Fifth Amendment Due Process Clause.
Fifth Amendment due process is significant across many areas of transnational litigation, including consent-based jurisdiction over the PLO in the Fuld case, as well as punitive damages and personal jurisdiction in cases against foreign sovereigns. And, of course, it plays an important role in the many cases like Douglass itself that involve personal jurisdiction over foreign defendants sued in federal courts in the United States under federal common law or a federal statute.