The Supreme Court on Friday afternoon agreed to decide whether a 2019 law that seeks to give U.S. courts the power to hear claims by victims of terrorism against the Palestine Liberation Organization and the Palestinian Authority violates the Fifth Amendment’s guarantee of fair treatment.
Fuld v. Palestine Liberation Organization and United States v. Palestine Liberation Organization, which will be argued together in the spring, were two of the three petitions for review that the justices granted after their private conference on Friday. The justices also agreed to take up the case of a Texas inmate seeking federal post-conviction relief.
The Promoting Security and Justice for Victims of Terrorism Act of 2019 provides that the PLO and the PA are “deemed to have consented to personal jurisdiction” in any civil case brought under the federal Anti-Terrorism Act, a 1992 law that allows lawsuits in federal court to recover treble damages for any U.S. national injured by international terrorism. The PSJVTA applies regardless of when the act of terrorism occurred, if at any time after the law was enacted the PLO or the PA made payments to the families of terrorists, either dead or in prison, responsible for the deaths or injuries of U.S. nationals. The PLO and PA can also be deemed to have given their consent to jurisdiction if they maintain offices or conduct activities in the United States, although the law does not apply to official United Nations business.
A group of U.S. citizens injured during terror attacks in Israel, along with the survivors of U.S. citizens killed in such attacks, filed a lawsuit in 2004. U.S. District Judge George Daniels determined that his court had jurisdiction over the PLO and the PA.
In 2015, a jury found the PLO and the PA liable for six terror attacks and awarded the victims $218.5 million. Under the Anti-Terrorism Act, that figure was automatically tripled to $655.5 million.
The U.S. Court of Appeals for the 2nd Circuit threw out the case the following year. It concluded that the PLO and the PA did not have sufficient contacts with the United States to be sued there in connection with the terrorist attacks. That prompted Congress (after an initial effort to address the jurisdictional problem was unsuccessful) to pass the PSJVTA.
The victims and families had appealed to the Supreme Court, which then sent the case back to the lower courts for another look in light of the PSJVTA.
In 2020, the family of a U.S. citizen who was murdered in the West Bank in 2018 filed their own lawsuit against the PLO and the PA in federal court.
While emphasizing that it found the terror attacks that gave rise to the case “unquestionably horrific,” the 2nd Circuit once again ruled that it lacked jurisdiction over the victims’ cases. The activities that trigger jurisdiction under the PSJVTA, the court of appeals explained, cannot “reasonably be interpreted” as showing that the PLO and the PA “consented” to be subject to courts in the United States.
The full 2nd Circuit declined to reconsider the question. Four judges dissented from that decision, in an opinion by Judge Steven Menashi that characterized the issue as one of “exceptional importance.”
Both the federal government (which had joined the cases to defend the constitutionality of the PSJVTA) and the victims came to the Supreme Court, asking the justices to take up the question. The victims told the justices that the lower court’s decision was “more than dangerous” but was in fact “flat wrong.” Moreover, they added, the court of appeals “hamstrung Congress on matters involving foreign affairs and national security.”
The federal government echoed those arguments, arguing that “Congress’s judgment that the PSJVTA is an important measure to further U.S. interests and protect and compensate U.S. nationals.”
The PLO and PA countered that the 2nd Circuit’s rulings have only a limited practical effect because they apply only to the PLO and PA – but not to “Hamas, Hezbollah, the Islamic State, or any other terrorist groups or state-sponsors of terrorism.” And in any event, they added, U.S. courts will continue to have jurisdiction over cases brought under the ATA “where attacks are targeted at America or U.S. citizens, or are planned or financed in the United States.”
In a brief unsigned order, the justices agreed on Friday to take up both the victims’ case and that of the federal government and consolidated them for one hour of oral argument.
The justices also agreed to hear Rivers v. Lumpkin, in which they will decide whether and in what circumstances the federal law that strictly limits the circumstances in which an inmate can file a second petition for federal post-conviction relief prohibits an inmate from seeking to amend his original petition while it is pending on appeal.
The justices will issue more orders from their private conference at 9:30 am on Monday. That list of orders, however, is likely to consist primarily of orders denying review and is not expected to add new cases to the 2024-25 docket.
This post is also published on SCOTUSblog.
