Fuld’s Implications for the FSIA (and Other Federal Statutes)
July 10, 2025
In Fuld v. PLO, the U.S. Supreme Court held that “the Fifth Amendment does not impose the same jurisdictional limitations as the Fourteenth.” This means that Congress may authorize federal courts to exercise personal jurisdiction over defendants that state courts may not constitutionally reach. In Fuld, the Court upheld the constitutionality of the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA), which provides that the Palestinian Authority (PA) and Palestine Liberation Organization (PLO) are deemed to consent to jurisdiction in cases under the Anti-Terrorism Act (ATA) if they make certain payments to terrorists or their families or if they engage in certain activities in the United States.
To be clear, the Fourteenth Amendment’s limitations on personal jurisdiction continue to apply to federal courts in most cases. This is because in many cases, including diversity jurisdiction cases, federal courts rely on Federal Rule of Civil Procedure 4(k)(1)(A), under which service establishes personal jurisdiction only over a defendant “who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Under this rule, if a state court could not exercise personal jurisdiction, a federal court cannot either, and state courts are limited by the Fourteenth Amendment.
But other provisions of Rule 4(k) allow federal courts to exercise personal jurisdiction when state courts could not. Rule 4(k)(1)(C) says that service establishes personal jurisdiction “when authorized by a federal statute,” and 4(k)(2) says federal courts can exercise personal jurisdiction over federal law claims when a defendant is not subject to personal jurisdiction in any state’s courts and “exercising jurisdiction is consistent with the United States Constitution and laws.” Fuld fell within Rule 4(k)(1)(C) because the PSJVTA authorized personal jurisdiction.
The Foreign Sovereign Immunities Act (FSIA) is another federal statute authorizing personal jurisdiction. Section 1330(b) says: “Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title.” Under subsection (a), federal courts have subject matter jurisdiction over any case where an exception to immunity applies. Thus, Congress has provided that federal courts may exercise personal jurisdiction over foreign states whenever they are not immune from suit under the FSIA’s rules. In this post, I look at Fuld’s implications for the FSIA and (briefly) for other federal statutes.
Personal Jurisdiction Under the FSIA Before Fuld…
To understand personal jurisdiction under the FSIA before Fuld, one must recall that the FSIA defines “foreign state” to include both a foreign state and its subdivisions and also “an agency or instrumentality of a foreign state.” “Agency or instrumentality” is in turn defined to include majority-state-owned corporations. Some of FSIA’s exceptions to immunity are a bit different for agencies and instrumentalities than they are for foreign states themselves. But § 1330(b) functions as a long-arm statute over all these defendants—authorizing personal jurisdiction so long as an exception to immunity applies.
As to the constitutional limits on personal jurisdiction, lower federal courts had held that foreign states themselves are not “persons” under the Fifth Amendment Due Process Clause, with the result that due process limitations on personal jurisdiction simply do not apply. But the same courts had also held that foreign corporations are “persons” entitled to the protections of the Fifth Amendment Due Process Clause, even if they are covered by the FSIA as agencies or instrumentalities of a foreign state. This meant, for example, that suits to confirm arbitral awards could not be brought against foreign state-owned companies under the FSIA’s arbitration exception, 28 U.S.C. § 1605(a)(6), when the companies lacked contacts with the United States sufficient to satisfy due process.
… And After Fuld
It seems to me that lower court decisions requiring a separate due process analysis for foreign state-owned corporations are no longer good law. As noted above, Congress has provided in § 1330(b) that personal jurisdiction “shall exist” for every claim from which a foreign state—including a state-owned corporation—is not immune. If, as explained below, this provision passes muster under Fuld, state-owned corporations covered by the FSIA would no longer benefit from limitations on personal jurisdiction beyond those that the FSIA provides. Thus, state-owned corporations would effectively be treated the same as foreign states. The distinction between foreign states and state-owned corporations may still be relevant for actions in state courts because state courts are subject to the limitations of the Fourteenth Amendment, rather than the Fifth, and are not covered by the FSIA’s personal jurisdiction provision. But in federal courts, the distinction no longer seems relevant.
To be sure, the Fuld decision does not adopt the “maximalist theory,” endorsed by Justice Thomas and Gorsuch, that the Fifth Amendment imposes no limits on Congress’s ability to legislate personal jurisdiction. “It is sufficient unto the day,” Chief Justice Roberts wrote, “that, whatever the Fifth Amendment’s outer limits on the territorial jurisdiction of federal courts, the PSJVTA does not transgress them.” Many of the factors that the Court discussed in reaching that conclusion appear to apply equally to the FSIA.
Foreign Affairs
“We will not,” the Court said in Fuld, “cavalierly interfere with the political branches’ ‘delicate judgments’ on matters of foreign affairs.” “Congress and the President made a considered judgment to subject” certain defendants to liability as part of “a comprehensive legal response” to international terrorism. Of course, the FSIA is not primarily about terrorism (although it does have two terrorism exceptions). But the rest of this reasoning fits the FSIA like a glove. In Verlinden B.V. v. Central Bank of Nigeria (1983), for example, the Court noted that “[a]ctions against foreign sovereigns in our courts raise sensitive issues concerning the foreign relations of the United States” and characterized the FSIA as “a statute comprehensively regulating the amenability of foreign nations to suit in the United States.” In short, the FSIA is a comprehensive statute addressing foreign relations, just like the PSJVTA.
“Suitably Limited”
In Fuld, the Court also noted that the PSJVTA was “suitably limited” to achieve Congress’s ends, applying to a narrow category of claims and, even then, only under certain conditions. Although the FSIA is not as narrowly drawn as the PSJVTA, it similarly limits the claims that can be brought against foreign states to those that fall within its enumerated exceptions to immunity.
And within those enumerated exceptions, the FSIA often adds further conditions. For example, the FSIA’s commercial activity exception, 28 U.S.C. § 1605(a)(2), requires one of three connections to the United States: (1) a commercial activity carried on in the United States; (2) an act in the United States in connection with a commercial activity elsewhere; or (3) a direct effect in the United States. Other exceptions similarly require some U.S. connection. Even the arbitration exception, 28 U.S.C. § 1605(a)(6), imposes conditions. It applies only if (1) the United States is the seat of arbitration; (2) the agreement or award is governed by a treaty to which the United States is a party; (3) the underlying claim could have been brought in U.S. courts under another exception to immunity; or (4) the foreign state has waived its immunity. The FSIA seems “suitably limited” to achieve Congress’s ends, just like the PSJVTA.
Reasonableness
The Supreme Court did not decide in Fuld whether the Fifth Amendment imposes a “reasonableness” requirement, similar to the one held in Asahi Metal Industry Co. v. Superior Court (1987) to apply to state courts. Reasonableness, the Court explained, “will depend in each case ‘on an evaluation of several factors,’ including ‘the burden on the defendant, the interests of the forum State, and the plaintiff ’s interest in obtaining relief’” (quoting Asahi). (Careful readers may note the pruning of Asahi’s five favors to just three.)
“The PSJVTA ticks all three boxes,” the Court said. It seems likely that the FSIA would too. First, the Court found that the connections with the United States expressed in the PSJVTA establish a “substantial interest in adjudicating the dispute.” The connections expressed in the FSIA would likely do the same. Second, the Court noted, U.S. plaintiffs under the PSJVTA have a strong interest in bringing ATA claims in U.S. courts. The FSIA analysis might differ somewhat here—although most FSIA plaintiffs are U.S. nationals, foreign nationals can bring claims too. Third, under the PSJVTA, the PA and PLO, as “sophisticated international organizations,” would not have to bear an unfair burden to defend themselves in U.S. courts. Under the FSIA, the same reasoning would seem to apply to many foreign state-owned corporations. To be sure, Asahi requires case-by-case determinations of reasonableness. Still, even if Asahi’s reasonableness requirement does apply to state-owned corporations under the FSIA, it is hard to see it operating as a significant limitation in most cases.
Other Federal Statutes
At present, I don’t believe there are many federal statutes besides the PSJVTA and the FSIA that deal directly with personal jurisdiction—although Congress could certainly amend existing statutes to address situations where limits on personal jurisdiction seem to be preventing recovery.
There are, however, a number of important federal statutes that authorize nationwide service of process, including federal antitrust laws, federal securities laws, and RICO. Because service in such cases is “authorized” by a federal statute, Rule 4(k)(1)(C) applies, and federal courts are not restricted to the personal jurisdiction that state courts can exercise (as they are under Rule 4(k)(1)(A)). In particular, federal courts have held that they are “not limited to the defendant’s contacts with the forum state and instead consider contacts with the nation as a whole.” One might argue that, after Fuld, such provisions should be read to authorize federal court jurisdiction under even looser limits.
But I would not read nationwide service provisions this way. First, unlike the PSJVTA and the FSIA, these statutes do not directly address personal jurisdiction—they address only service of process. It is true that under Rule 4(k)(1)(C), service pursuant to such a statute establishes personal jurisdiction. But neither these service provisions alone, nor taken together with Rule 4(k)(1)(C), demonstrate the kind of “considered judgment” by Congress and the President to subject particular defendants to personal jurisdiction that the Court found in Fuld. These service provisions are also not “suitably limited” to achieve specific ends, another factor the Court found important in Fuld. Typically, they authorize service “in the district of which [a corporation] is an inhabitant, or wherever it may be found.” Period.
Were federal courts to start down the road of reading service provisions as authorizations of personal jurisdiction under Fuld, they may encounter some hard cases. Scott Dodson (who has his own interested take on Fuld) pointed out to me, for example, that the federal multiparty/multiforum provision, 28 U.S.C. § 1369, grants federal subject matter jurisdiction over accidents in which at least 75 people died and multiple states are involved. Such claims would presumably be brought under state (or even foreign) law. The service provision says: “When the jurisdiction of the district court is based in whole or in part upon section 1369 of this title, process, other than subpoenas, may be served at any place within the United States, or anywhere outside the United States if otherwise permitted by law.” Thus service, even outside the United States, authorizes the exercise of personal jurisdiction over the defendant under Rule 4(k)(1)(C).
Could anyone really think that Congress made a “considered judgment” in passing these provisions to subject foreign defendants with no contacts to the United States to personal jurisdiction on foreign law claims? Congress more likely assumed that these provisions would be subject to familiar due-process limits on personal jurisdiction (except for permitting consideration of nationwide contacts), as federal courts had consistently held until Fuld.
Conclusion
The immediate implications of Fuld for transnational litigation are not vast. Fuld should be interpreted to end the need for a separate due process analysis in cases against foreign state-owned corporations under the FSIA because § 1330 specifically provides that federal courts “shall have” personal jurisdiction. Fuld should not be interpreted, however, to end the need for a separate due process analysis whenever a statute authorizes nationwide service and Rule 4(k)(1)(C) applies.
But Fuld opens the door for Congress to address personal jurisdiction in other statutes. As I have noted before, limits on personal jurisdiction have the potential to limit the effective reach of federal statutes. “Congress cannot effectively extend its laws extraterritorially,” I wrote, “if courts lack personal jurisdiction to apply those laws.” When Congress sees recovery under its statutes being thwarted by limits on personal jurisdiction, it will surely be tempted to change those limits.
The two examples I gave in my prior post were the ATA and the Helms-Burton Act. The PSJVTA was enacted to address the problem for the ATA, and Fuld has now blessed Congress’s action. Congress has not amended Helms-Burton to address personal jurisdiction—but it could.