Supreme Court Grants Cert in Fuld v. PLO
December 6, 2024
Today, the U.S. Supreme Court granted certiorari in Fuld v. Palestinian Liberation Organization to decide whether the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA) violates the due process clause of the Fifth Amendment. For prior TLB coverage of Fuld, see here, here, here, here, and here.
The PSJVTA purports to establish personal jurisdiction over the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) for civil actions under the Anti-Terrorism Act by providing in 18 USC § 2334(e) that the PLO and PA “shall be deemed to have consented to personal jurisdiction” if they either (1) make payments to individuals who committed an act of terrorism that killed or injured U.S. nationals or to their families, or (2) maintain an office or conduct any activity in the United States, other than activity necessary to participate in the United Nations.
The Second Circuit held that the PSJVTA violated the PLO’s and PA’s due process rights by converting continuing conduct into implied consent by legislative fiat. Both the plaintiffs and the United States petitioned for cert. The Supreme Court granted both petitions and consolidated the cases for oral argument.
Embedded in the question presented are two subsidiary questions, both of them important. The first concerns the limits of consent jurisdiction under Mallory v. Norfolk Southern Railway Co. (2023) in a context where the dormant Commerce Clause is inapplicable because Congress has acted rather than a state. What limits, if any, are there to Congress’s ability to say that a defendant has submitted to personal jurisdiction in federal courts by engaging in certain conduct?
The second important question is whether due process limits applicable to federal courts under the Fifth Amendment are different from those applicable to state courts under the Fourteenth. That question is also raised in CC/Devas (Mauritius) Limited v. Antrix Corp. and Devas Multimedia Private Ltd. v. Antrix Corp., in which the Court will consider whether the exercise of personal jurisdiction over a foreign state under the Foreign Sovereign Immunities Act requires satisfaction of the minimum-contacts test. Devas will be argued before Fuld, although the Court could avoid the question in Devas by holding that foreign states are not “persons” within the meaning of either Due Process Clause.