The case of the day is Fuld v. PLO (2d Cir. 2024). It’s a denial of a petition for an en banc rehearing in an important personal jurisdiction case, and since the Second Circuit is so stingy with en banc rehearings, the decision isn’t a surprise. There are, though, two interesting opinions, one a concurrence from Judge Bianco, who was on the panel, and the other a dissent by Judge Menashi. Maggie Gardner has a terrific post at the Transnational Litigation Blog that gives the background and details the two opinions, so I am not going to write at length. Here are a few thoughts about the case:

1. The dissent argues that the Fifth Amendment does not limit the reach of the federal courts’ personal jurisdiction in the same way that the Fourteenth Amendment limits the reach of the state courts’ personal jurisdiction. It’s true that the Supreme Court has left that question open, and it may be true, if you believe that what matters is the original meaning of the text, that what “due process of law” meant in 1791 is not the same as what it meant in 1868, just as it meant something different in 1215 or 1354. I am not going to go astray by criticizing the curious premise that what matters is the original meaning of the words of the Constitution or its amendments at the time of ratification. Instead, I want to focus on the practical implications of decoupling the Fifth Amendment from the Fourteenth Amendment. FRCP 4(k)(1) provides that a federal court can exercise jurisdiction if the defendant “is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” The idea of the rule is to keep the jurisdiction of the federal courts in sync with the jurisdiction of courts of the states where they sit.¹ I can only imagine the mischief if the jurisdictional analysis in a diversity case were not identical in state and federal court. Suppose I have a claim against a foreign defendant and my claim is within the state’s long-arm statute, but the defendant lacks minimum contacts with the forum state under the Fourteenth Amendment. Can I bring the claim in federal court in the first instance (assuming the amount-in-controversy requirement is met)? Does Rule 4(k)(1) just mean that the the requirements of the long-arm statute have to be met, or does it mean that the federal court can only exercise jurisdiction only if the state court could exercise jurisdiction only if the state court could exercise jurisdiction under the Fourteenth Amendment, even though the Fourteenth Amendment does not apply to the federal courts?
2. There is something really artificial about the case. Consider that the only reason all of these issue are arising here rather than in some other case is that the court is not treating Palestine as a state. If Palestine were a state, then it would have no due process rights and the question would be whether the case comes within one of the statutory exceptions for foreign sovereign immunity. Perhaps you will say that this is not such a big deal, since what matters is whether the Executive recognizes Palestine as a state. But in earlier cases, Palestine had to argue that it should not be recognized as a state in order to avoid potentially large liabilities in terrorism cases. And as friend of Letters Blogatory David Stewart has written in the FJC’s guide to the FSIA: “Formal diplomatic or political recognition of the foreign state or government by the United States is not a statutory prerequisite. However, in some circumstances, the fact that the U.S. Government has given formal recognition to a named defendant as a ‘foreign state’ has been found relevant.” Just pause to consider how important it is to Palestine to be considered a state so that the ICC can exercise jurisdiction over alleged war crimes in the territory of Palestine, and how important it is to Palestine not to be considered a state so that it is can avoid the possibility of big liabilities in the United States to victims of alleged acts of Palestinian terrorism or their survivors.

Image credit: UK National Archives (Open Gov’t License)

1. Rule 4(k)(2) provides a safety valve so that federal courts can hear federal claims even if no state court has jurisdiction, e.g., in cases where the defendant has sufficient contacts with the United States even though it has insufficient contacts with any state in particular.