Fuld and Waldman Plaintiffs Seek Supreme Court Review

TLB has followed the Second Circuit’s decisions holding unconstitutional the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA) and denying an en banc rehearing in Fuld v. Palestine Liberation Organization and Waldman v. Palestine Liberation Organization over a strong dissent by Judge Steven Menashi. As predicted, the plaintiffs recently filed a petition for certiorari before the Supreme Court, and both the PLO and the U.S. Government are expected to weigh in.

This is a petition to watch, and the plaintiffs waste no time in highlighting why: “To start,” they write, “the Second Circuit facially invalidated a federal statute as unconstitutional.” Second, the statute deemed unconstitutional was an effort by Congress to provide judicial recourse for Americans harmed by international terrorism abroad and their families, and it was adopted expressly in response to prior rulings in these cases. It thus implicates separation of powers in an area of sensitive federal concern. Third, the case tees up the question of an originalist understanding of personal jurisdiction, specifically in terms of federal governmental power under the Fifth Amendment’s Due Process Clause. A vocal minority of judges on the Second, Fifth, and Ninth Circuits have argued that the Supreme Court’s personal jurisdiction jurisprudence, developed under the Fourteenth Amendment, simply doesn’t apply in the context of the Fifth Amendment, and that argument is likely to appeal in particular to Justices Gorsuch and Thomas. And fourth, regardless of the larger theoretical questions hovering around personal jurisdiction, the case involves an application of, and thus an opportunity to further clarify and refine, the Supreme Court’s recent decision in Mallory v. Norfolk Southern Railway Co. (2023) approving the use of statutes to establish consent to jurisdiction.

The Palestinian Authority and the PLO have sought and received an extension of time to file their brief in opposition, which is due September 9. Their request was based on their expectation that the U.S. Government will weigh in on the petition, just as it intervened below to defend the PSJVTA’s constitutionality.

I have to flag two initial though minor frustrations with the plaintiffs’ (very well-written) petition. First, their argument on the original understanding of the Fifth Amendment Due Process Clause relies almost entirely on admiralty cases and admiralty jurisdiction. They argue these cases demonstrate early approval of (what we would today call) personal jurisdiction over foreign parties for acts outside the United States. But in those cases, the persons or property over which the U.S. courts asserted power where physically located within the forum. The PA and PLO have argued (and the Second Circuit appears to have accepted) that they have avoided similar physical presence in the United States beyond their diplomatic mission at the United Nations. Further, those cases typically involved conduct that occurred on the “high seas,” which fell outside the jurisdiction of any other nation. That is also different from the regulatory authority asserted by the PSJVTA, which poses a greater risk for international comity. As I’ve recently argued here and here, care must be taken in drawing lessons from early admiralty cases for more general application today.

Second, and relatedly, the petition at times mixes together adjudicative jurisdiction (i.e., personal jurisdiction) and prescriptive jurisdiction (the power to make laws). The petitioners quote recent decisions on the presumption against extraterritoriality to contrast what they suggest is limitless federal power with necessary federalism limits on state power. This feels awkward because the presumption addresses the reach of U.S. law, while personal jurisdiction addresses the reach of U.S. courts. Just because Congress legislates to reach extraterritorial conduct does not mean it intends for courts to apply that extraterritorial law to anyone anywhere in the world. Perhaps the petitioners mean to argue that the PSJVTA’s effort to legislate personal jurisdiction should be read to rebut the presumption against extraterritoriality and thus should be applied according to its own terms. But the Supreme Court has never suggested that a statute that rebuts the presumption against extraterritoriality is unchecked by constitutional constraints, which would include the Due Process Clause. The appeal to the extraterritoriality caselaw thus strikes me as both confusing and unhelpful.

I agree that the Supreme Court has over-curtailed the personal jurisdiction of state courts. I have also criticized the Court’s development of the presumption against extraterritoriality as too aggressive a check on Congress’s ability to legislate extraterritorially. But I would solve both problems by unwinding those judicial developments, not by blowing up more than 150 years’ worth of personal jurisdiction doctrine based on selective quotations from old (and not quite analogous) cases.