Case of the Day: Safra v. Palestinian Authority

While I don’t generally write about personal jurisdiction cases, the irony in Safra v. Palestinian Authority (D.D.C. 2015), is too good to pass up, especially in light of the verdict in Sokolow v. Palestinian Authority yesterday. In Sokolow, the jury found that the Palestinian Authority was liable for more than $200 million to victims of terrorist attacks in Jerusalem several years ago under the Anti-Terrorism Act. In Safra, on the other hand, the Palestinian Authority avoided trial—if the court’s decision withstands appeal—by successfully arguing that the court in Washington lacked personal jurisdiction.

So here is the irony. As Judge Kollar-Kotelly recognized in Safra, the Palestinian Authority’s due process rights—the rights that allow it to argue that it would be contrary to the Due Process Clause for the US court to exercise jurisdiction over it—depend on the conclusion that the Palestinian Authority is not a state (or more precisely, I suppose, not the government of a state). States do not have due process rights and cannot claim lack of personal jurisdiction (though of course they have sovereign immunity from suit and can raise lack of subject matter jurisdiction):

The D.C. Circuit Court of Appeals addressed a related question in GSS Group Ltd. v. National Port Authority, 680 F.3d 805 (D.C. Cir. 2012), concluding that foreign state-owned corporations, such as the National Port Authority of Liberia, have Due Process rights. Id. at 817. Importantly, the Court of Appeals distinguished Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002), in which the Court of Appeals had previously held that foreign states do not have Due Process rights because they are juridical equals with the United States. Id. at 96-97. Given this conclusion, Plaintiffs cannot rely on Pric—as they seek to—to argue that the Palestinian Authority has no Due Process rights. Like foreign state-owned corporations, but unlike sovereign nations, the Palestinian Authority, a non-sovereign government, is not a juridical equal of the United States.

So it’s pretty surprising to me to read that Palestinian officials are pointing to the Washington decision as reason to think they will be successful in overturning the New York verdict. Is the PA really seeking a ruling from another US court to the effect that Palestine is not a state?

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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