Rebuffing Consent-Based Jurisdiction Over the PLO for Overseas Terrorist Acts

The following post is by Rocky Rhodes (South Texas) and Andra Robertson (Case Western), who have been writing and blogging about consent-based jurisdiction. They covered Mallory v. Norfolk Southern Railway for us last Term. We invited them to write a series of posts in the coming days on two recent Second Circuit cases, the first to consider Mallory's scope.

Procedural and transnational scholars have an abundance of puzzles to unravel in the Second Circuit’s recent decisions holding the Fifth Amendment’s Due Process Clause prohibited the “deemed consent” provisions of the federal Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA) from establishing personal jurisdiction over the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) for supporting overseas terrorist acts. The cases are the first federal circuit court decisions interpreting in depth the Supreme Court’s decision this summer in Mallory v. Norfolk Southern Railway Co., which held that Pennsylvania’s corporate registration scheme (which specifies that corporations registering to do business submit to general personal jurisdiction in Pennsylvania for any and all suits) did not violate due process. The Second Circuit’s decisions also rest on questions that have long divided scholars and courts on the transnational scope of the Fifth Amendment’s Due Process Clause and whether the PLO and PA should be afforded due process protections from the adjudicative authority of United States courts. We are grateful to Howard for giving us an opportunity for posting our thoughts and analysis in unpacking some of these issues.

The Suits Against the PLO and the PA

The primary and signed Second Circuit opinion, Fuld v. Palestine Liberation Organization, arose from the fatal stabbing of U.S. citizen Ari Yoel Fuld in a 2018 terrorist attack outside a shopping mall in the West Bank. His widowed spouse and his children filed suit in the Southern District of New York against the PLO, which conducts Palestine’s foreign affairs and serves as a Permanent Observer to the United Nations on behalf of Palestinians, and the PA, which is the non-sovereign and interim governing body of parts of the Gaza Strip and the West Bank. The Fulds allege that, because the PLO and PA incentivized and assisted the terrorist act that led to the fatal stabbing, monetary damages should be awarded against both defendants under the remedial provisions of the Anti-Terrorism Act (ATA), which authorize compensation to United States nationals injured “by reason of an act of international terrorism” from “any person who aids and abets, by knowingly providing substantial assistance” to the perpetrator of the attack.

But the PLO and the PA moved to dismiss the Fulds’ suit for lack of personal jurisdiction. Although Congress enacted the PSJVTA specifically to authorize jurisdiction over the PLO, the PA, and any successor or affiliated entities in suits under the ATA in federal court, the defendants urged that the PSJVTA’s jurisdictional provisions deeming their statutorily defined post-enactment conduct as a “consent” to personal jurisdiction conflicted with the dictates of the Fifth Amendment’s Due Process Clause.

Congress enacted the PSJVTA in response to the success of the PLO and the PA in having other overseas terrorist-activity suits under the ATA dismissed on jurisdictional grounds. One of those cases, Waldman v. Palestine Liberation Organization, was also before the Second Circuit, now for the third time, and was decided on the same day as Fuld. Almost twenty years ago, the Waldman plaintiffs had likewise sued the PLO and the PA under the ATA for money damages for providing material support for terrorist attacks. Although the Waldman plaintiffs eventually obtained a substantial jury verdict, the Second Circuit reversed in Waldman I, 835 F.3d 317 (2d Cir. 2016), on the basis that the PLO and the PA were not amenable to jurisdiction. While acknowledging that sovereign foreign governments lacked due process rights, the Second Circuit concluded that, because neither the PLO nor the PA were recognized by the United States as sovereign states, they were protected by personal jurisdiction due process limits, which are “basically the same under both the Fifth and Fourteenth Amendments.” The only relevant difference, according to the Second Circuit, is that the Fifth Amendment allows the consideration of the defendant’s contacts throughout the United States, rather than just with a particular state.

In the absence of consent, these jurisdictional limits require that foreign defendants such as the PLO and the PA have the necessary contacts with the United States to support general or specific jurisdiction. General jurisdiction exists where the defendant is “at home,” allowing plaintiffs to bring all claims, wherever they arose. But the PLO and the PA are “at home” only in Palestine, the headquarters and nerve center of both entities. Specific jurisdiction occurs when the defendant establishes purposeful contacts with the forum and the dispute “arises from or relates to” the defendant’s forum contacts in a manner that satisfies certain standards of fairness. But the overseas terrorist activities of the PLO and the PA were neither related to nor aimed at the United States—the random attacks only affected U.S. citizens because they were victims of indiscriminate violence abroad, which the Second Circuit held in Waldman I was not sufficient for specific jurisdiction.

Statutory Jurisdictional Consent

Congress initially responded to Waldman I, and similar holdings in the District of Columbia Circuit dismissing cases under the ATA against the PLO and the PA for lack of personal jurisdiction, with the Anti-Terrorism Clarification Act of 2018 (ATCA). The ATCA provided that if, after more than 120 days of the statute’s enactment, a defendant accepted certain forms of assistance from the United States or maintained an office within the jurisdiction of the United States under a waiver of a federal statute barring the PLO from operating such an office, the defendant would be deemed to have consented to personal jurisdiction in an ATA suit, regardless of when the international terrorism occurred or suit was filed. But, within the 120-day period, the PLO and the PA formally terminated their acceptance of any relevant assistance from the United States and shut down the PLO’s only office operating pursuant to a federal statutory waiver. Based on these actions, neither of the ATCA’s predicates were met. The Second Circuit in Waldman II thus refused to recall its mandate from Waldman I that dismissed the suit for lack of personal jurisdiction. See Waldman v. Palestine Liberation Org., 925 F.3d 570 (2d Cir. 2019) (per curiam), cert. granted, judgment vacated sub nom. Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020) (mem.).

While petitions for writs of certiorari were pending before the Supreme Court in Waldman II and a case from the D.C. Circuit, Congress tried again for a consent-based solution, this time with the “Promoting Security and Justice for Victims of Terrorism Act of 2019.” The PSJVTA, which applies just to the PLO, the PA, and successor or affiliated entities, deems that those entities consent to personal jurisdiction if, after a specified number of days from the statute’s enactment, they either (1) make a direct or indirect payment to an imprisoned terrorist or a member of his family after his death, or (2) conduct activities while physically present in the United States or maintain any facilities or establishments within the United States other than those devoted exclusively to conducting official business of the United Nations or related to engagements with United States officials or legal representation. Congress provided that this new act should “be liberally construed to carry out the purposes of Congress to provide relief for victims of terrorism” and should apply to “any case pending on or after August 30, 2016,” which meant it applied to both the Waldman and Fuld litigation.

Congress thus sought in the PSJVTA to rely on a third pathway to personal jurisdiction: consent. Defendants may consent to personal jurisdiction, either by agreement or litigation conduct, in a forum where they would not otherwise be subject to personal jurisdiction. As we have discussed previously on Prawfs, the Supreme Court held in Mallory this summer that the Due Process Clause was not violated by Pennsylvania employing a consent theory to uphold jurisdiction over an out-of-state corporation registering to do business in the state, even when that corporation would not otherwise be subject to either general or specific jurisdiction. Congress similarly sought to base jurisdiction over the PLO and the PA on their deemed consent to jurisdiction in engaging in certain specified activities.

But the PLO and the PA responded in Fuld and Waldman that the statutory jurisdictional predicates in the PSJVTA did not signal an acceptance of or an intent to submit to the jurisdiction of the United States. While a variety of legal arrangements may constitute the necessary consent, the defendants maintained that the predicate activities deemed “consent” under the PSJVTA were unrelated to the litigation or any submission to the judicial power of courts in the United States. In other cases relying on this jurisdictional basis, the defendant’s consent was predicated on either litigation-related conduct or the acceptance of some in-forum benefit conditioned on amenability to suit in the forum. But neither of those, the defendants argued, were present under the PSJVTA. First, foreign payments made to foreign nationals were neither an in-forum benefit nor related to litigation conduct; and second, the United States had not provided any forum benefit for the alleged United States activities of the PLO and the PA—rather, any such activities were illegal under federal law. This meant, according to the defendants, that the PSJVTA deemed activities consent in a manner that violated their due process rights.

The Second Circuit agreed. We will explore the Second Circuit’s rationale and its implications for the future of consent jurisdiction in our next post.