Supreme Court Ducks Fifth Amendment Due Process Question

The Supreme Court denied certiorari yesterday in Douglass v. Nippon Yusen Kabushiki Kaisha. This highly-watched case raises an important question that the Court will have to address sooner or later:  the Fifth Amendment due process limitations on personal jurisdiction. The Supreme Court’s personal jurisdiction cases have repeatedly interpreted the Due Process Clause of the Fourteenth Amendment – but not the Fifth Amendment – in part because Federal Rule of Civil Procedure 4(k)(1) extends personal jurisdiction in federal courts over defendants who are “subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Deciding whether a state court has personal jurisdiction is an issue of the Fourteenth Amendment, not the Fifth Amendment. The plaintiffs in Douglass, by contrast, asserted personal jurisdiction based on Federal Rule of Civil Procedure 4(k)(2).

Sitting en banc, the Fifth Circuit held in Douglass that Fifth Amendment due process mirrors Fourteenth Amendment due process, except that the relevant sovereign is the United States as a whole, not one specific state. As prior coverage on TLB explains, an important dissent in Douglass made an originalist argument that Fifth Amendment due process is not limited by “minimum contacts” but instead extends as a far as Congress chooses. Some justices have in the past appeared eager to consider originalist arguments in personal jurisdiction cases, so a cert grant seemed plausible.

Perhaps the justices are struggling to decide the personal jurisdiction question in Mallory v. Norfolk Southern and decided to pass on another personal jurisdiction case. In any event, Fifth Amendment due process remains an open question, at least for now.