The case of the day is Fuld v. Palestine Liberation Organization (S. Ct. 2025). I last wrote about the case when the Second Circuit denied a petition for a rehearing en banc, and friend of Letters Blogatory Maggie Gardner had an excellent post about the case at about the same time at the Transnational Litigation Blog. The claims in the case were brought by American victims of Palestinian terror attacks in Israel and an American victim of a stabbing attack in the West Bank. Both claims were brought under the Antiterrorism Act. The first set of victims won a judgment against the PLO and the Palestinian Authority for more than $600 million after a jury trial. The family of the second victim never made it to trial, as the District Court, after an appellate decision in the first case, ultimately held that it lacked personal jurisdiction in both cases.¹

The issue in the case was the constitutionality of the Promoting Security and Justice for Victims of Terrorism Act. That statute (18 U.S.C. § 2334(e)) is long and complicated. Suffice it to say that it creates jurisdiction in Antiterrorism Act claims brought by Americans if the PLO and the PA are continuing to engage in the “pay to slay” policy, under which they pay pensions to terrorists imprisoned for killing Americans or to the families of suicide bombers, and it creates jurisdiction if the PLO and the PA have premises or conduct activities in the US after a specified time (excluding their missions to the UN). If the statute is constitutional, then the court had personal jurisdiction in the two cases; but the PLO and the PA did not (the lower courts found) have sufficient contacts with the United States to satisfy ordinary personal jurisdiction test under the Due Process Clause. But the case was in federal court and arose under federal law. The question was whether the Fifth Amendment, which contains the Due Process Clause applicable in the case, has the same minimum contacts requirement as the Fourteenth Amendment, which contains the Due Process Clause that limits the jurisdiction of the state courts.

Ordinarily, the Federal Rules of Civil Procedure make it clear that the personal jurisdiction of the federal courts is coextensive with the personal jurisdiction of the courts of the state where the federal court sits.² More specifically, FRCP 4(k)(1)(A) provides that service of a summons on a defendant is sufficient to vest the court with personal jurisdiction if the defendant “is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” But FRCP 4(k)(2) provides a residual federal jurisdiction if the claim arises under federal law, the defendant is not subject to personal jurisdiction in the courts of any state, and the exercise of jurisdiction is constitutional. And FRCP 4(k)(1)(B) provides for federal jurisdiction “when authorized,” as here, “by a federal statute.” So this is one of the rare cases where the courts have to consider whether the Fifth Amendment and the Fourteenth Amendment impose the same limitations on jurisdiction.

The Court, in a unanimous decision (two of the justices, Justices Thomas and Gorsuch, concurred in the judgment but did not join the Chief Justice’s opinion for the Court) reversed, holding that the statute was constitutional because the Fifth Amendment did not require the minimum contacts required under the Fourteenth Amendment, and because whatever the limitations on personal jurisdiction under the Fifth Amendment—if there are any—the statute did not exceed them.

My fear in advance of the decision was that the court would look to the original meaning of the words of the Due Process Clause at the time of ratification of the Bill of Rights, after the Revolution, and at the time of ratification of the Fourteenth Amendment, after the Civil War, and decide that the same words (or very nearly the same words) mean different things. That would have been a Bad Thing. Instead, the court did what I think, as a general rule, courts should do. It asked, “What is the Fifth Amendment for?” and “What is the Fourteenth Amendment for?” and let the answer to those questions guide the decision. The gist of the analysis is that the Fourteenth Amendment aims to regulate the jurisdiction of the states vis-à-vis each other (as well as to ensure fairness to defendants). But the Fifth Amendment has no analogous function, because the national government has no horizontal competitors. (Vertical competition with the states is regulated by Article III’s limitations on the federal courts’ subject-matter jurisdiction, and those limits weren’t in play here). I am okay with the analysis, though I do think that it would have been forward-looking at least to consider whether the Due Process Clause has a role in regulating the jurisdiction of American courts vis-à-vis foreign courts. Perhaps nothing would come of that, but there is an implicit international system of allocating jurisdiction among national courts, a point the court referenced when discussing the interests of foreign litigants in not being haled into an American court–see below. I also wonder whether the functional explanation the court gave is really strong enough to overcome what seems to me to be a very strong presumption: when two related statutes (or constitutional provisions) use the same words, we should require a very strong reason before holding that they don’t mean the same thing.

The court left for another day the limits of the Fifth Amendment, refusing the adopt the petitioners’ argument that the Fifth Amendment imposes no territorial limitations. It reasoned that whatever the limits are, the statute, which was narrowly drawn to provide a forum for cases with a clear nexus with the national interest and the private interests of American victims of terrorism, while not subjecting foreign defendants to US jurisdiction in a wide range of cases.

1. You might think this is odd, since the FSIA (28 U.S.C. § 1330(b)) provides that “personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction” under one of the exceptions to foreign sovereign immunity in the statute, provided the foreign state has been served with process. And Palestine is a state, right? Well, the United States does not recognize it as a state, and the court did not inquire any further into the point. Nor, it seems, was the PA eager to press the point. The question of Palestinian statehood comes up in lots of legal contexts (e.g., the ICC’s jurisdiction over alleged Israeli war crimes), and it certainly suits the PA to be a state in that context but not in this context. ↩︎
2. In this discussion I use the word “state” in the US sense, that is, “state of the United States.” ↩︎