The Supreme Court will hear oral arguments on Tuesday in the latest chapter of the justices’ efforts to lay out rules for personal jurisdiction – whether courts have the power to hear a case against certain defendants. Tuesday’s case is a particularly high-profile dispute, and one that the federal government says has national security and foreign policy implications. At issue is whether a law enacted by Congress six years ago to allow U.S. victims of terrorist attacks to sue the Palestinian Authority and the Palestine Liberation Organization in federal courts in the United States violates the Constitution’s guarantee of due process.
The case has had a long and circuitous route to the Supreme Court. The plaintiffs are U.S. citizens injured in terrorist attacks in Israel, as well as the families of U.S. citizens killed in such attacks. They filed a lawsuit in U.S. court against the Palestine Liberation Organization, which is the Palestinian people’s official representative for foreign affairs, and the Palestinian Authority, the governing body for parts of the West Bank and Gaza Strip, under the Anti-Terrorism Act, which allows U.S. nationals to bring lawsuits to recover for injuries resulting from “an act of international terrorism.”
The plaintiffs say that both bodies encouraged the attacks, including by paying the families of Palestinians killed in suicide attacks or in prison for attacks in Israel. The PLO and the PA made monthly payments to families of prisoners held in Israel for political crimes, killed in conflict, or imprisoned in Israel for terrorism — 70% of Palestinian families have one or more relatives detained in Israel.
In February, President Mahmoud Abbas ended the payments and indicated that welfare payments will now be allocated based on families’ financial need. The move was seen as an overture to the United States to comply with U.S. law that would allow for foreign aid. The Palestinian Authority has been in increasing economic distress in recent years, struggling to make employees’ monthly salary payments.
In 2015, a jury awarded the plaintiffs in one such case $218.5 million – which the ATA tripled, to $655.5 million. But on appeal the Supreme Court ruled that federal district courts did not have jurisdiction over either the PLO or PA.
In 2019, Congress enacted the Promoting Security and Justice for Victims of Terrorism Act. The law provides that the PLO and the PA “shall be deemed to have consented to personal jurisdiction” in any civil case brought under the Anti-Terrorism Act, no matter when the act of international terrorism occurred, if they make payments to the families of terrorists who injured or killed a U.S. citizen or engaged in any activities within the United States. The law carves out a few narrow exceptions to the latter criterion – for example, for conduct relating to official United Nations business or meeting with government officials.
The Supreme Court sent the dispute back to the lower courts for another look in light of the new law. The U.S. Court of Appeals for the 2nd Circuit ruled that the lawsuit could not go forward. It reasoned that the PLO and the PA had not consented to U.S. courts exercising jurisdiction over them. Moreover, the court of appeals added, the PLO and the PA did not engage in the kind of activities from which it would be fair to infer consent, such as conduct related to litigation in the United States or the receipt of a benefit from the U.S. government. The full court of appeals, over a dissent by four judges, declined to reconsider the decision.
Both the federal government, which had joined the lawsuit to defend the law’s constitutionality, and the plaintiffs came to the Supreme Court, which agreed in December to weigh in.
In its brief at the Supreme Court, the federal government begins by observing that the Supreme Court has never decided whether the due process clauses in the 14th Amendment (which applies to cases brought in state courts) and the Fifth Amendment (which applies to cases brought in federal courts) impose the same limits on jurisdiction. But the law at the center of this case passes constitutional muster, the government insists, even under the more stringent test that applies to state courts.
The PSJVTA, the government explains gives the PA and the PLO “a choice tailored to their unique status and vital U.S. foreign-policy and national-security interests.” They could stop payments to the families of terrorists who injured U.S. citizens, as well as activities in the United States that are not necessary for their diplomatic representation or legal representation in U.S. courts. But if they continue that conduct, the government contends, they will be deemed to have consented to lawsuits against them under the PSJVTA. The PLO and the PA, the government writes, “knowingly chose the latter option.”
But in any event, the government continues, cases brought in federal courts are not subject to the same restrictions on personal jurisdiction that apply to cases in state courts. For purposes of the 14th Amendment’s due process clause, the government contends, an inquiry into personal jurisdiction inquiry focuses on a defendant’s contacts with the state that is seeking to bring it into court. But because the federal government has broader interests, such as foreign policy and trade, courts should undertake a “more flexible” inquiry that is “calibrated to the circumstances at hand.” In particular, the government suggests, courts should look at whether, “in the circumstances of the case, a federal court’s exercise of personal jurisdiction is so burdensome as to be fundamentally unfair to the defendant.” The PLO and the PA, the government notes, “have never attempted to establish that the Act is unfair in that sense.”
Here, the government emphasizes, Congress believed that deeming the PLO and the PA to have consented to jurisdiction in federal courts was the best way to prevent terrorism. Such a determination is entitled to deference, it concludes.
The U.S. victims and families tell the justices that the PSJVTA law provides the kind of due process that the Founding Fathers recognized as adequate. Under the law, they say, the PLO and the PA can still defend themselves in court – with an independent judge and a trial. And the law is not arbitrary: “It advances the Federal Government’s legitimate foreign-policy and national-security interests by deterring and disrupting terrorism, protecting and compensating Americans, and” providing an incentive for the PLO and the PA to “end their official program of financially rewarding terrorism.”
The group next echoes the government’s suggestion that the concerns underlying limitations on personal jurisdiction in state courts – ensuring that states do not encroach on other states’ authority by hearing disputes that have little connection to the state – do not apply to jurisdiction in federal court. The Supreme Court, they write, “has repeatedly taught that federal courts can adjudicate federal cases arising from” conduct that takes place outside the United States “when Congress so provides.”
The victims also point to the Supreme Court’s 2023 decision in Mallory v. Norfolk Southern Railway, in which the justices rejected a challenge to a Pennsylvania law that created jurisdiction through consent – specifically, out-of-state corporations were deemed to have consented to be sued in state courts when they registered as corporations in the state. The Supreme Court, the victims explain indicated that a defendant could constructively consent to personal jurisdiction by accepting a benefit in the state or by “engaging in conduct specified by law … as happened here.”
Moreover, the victims add, the law in this case serves legitimate government interests – which the Pennsylvania law in Mallory did not – because it “applies only to cases involving terrorism against American victims and their families.” And in any event, the PLO and the PA did receive benefits from the United States – the “privilege of residing and conducting business in the United States — not to mention furthering their political goals at the expense of American lives.”
The Palestinian Authority and the PLO denounce the PSJVTA as “the latest legislative attempt to undo an unbroken line of cases holding that” they cannot be haled into U.S. courts “for their alleged involvement in terrorist attacks in Israel and Palestine.”
Courts have repeatedly held, they write, that subjecting them to suits in federal courts “would violate due process because the attacks did not target Americans, and” because the PLO and the PA do not have “other constitutionally-sufficient connections to the United States.” Moreover, they add, in decisions issued before the enactment of the PSJVTA, courts have consistently ruled that payments by the Palestinian Authority, “which occur entirely outside the United States, do not support personal jurisdiction because they are not connected to the forum or to” the plaintiffs’ claims.
The PLO and the Palestinian Authority also push back against any suggestion that they consented to be sued in the United States, insisting that they had not done anything that could be interpreted as consent. They did not sign a contract agreeing to be sued in the United States, they note. And they did not accept any benefit from the federal government in exchange for being subject to suit, they continue. Nothing in the PSJVTA offers the PLO and the PA any “benefits,” they maintain. The PA ended the payment program in February, but the law subjects them to lawsuits in U.S. courts “for making payments that the United States had no power to permit or prohibit in the first place.”
Moreover, they tell the justices, the United States can bar (and has barred) the PLO and the PA from operating in the country. But the provision in the law subjecting the PLO and the PA to jurisdiction based on their activities in the United States also does not confer a “benefit” on them. Under the government’s reasoning, the PLO and the PA, say, the “benefit” that they receive is the benefit of not being subject to lawsuits under the Anti-Terrorism Act. But that is “entirely circular,” they argue, and would mean that Congress could always impose jurisdiction by consent.
It is also not enough, the PLO and the PA assert, that the PSJVTA may have provided them with advance notice that they would be subject to lawsuits in U.S. courts if they engaged in the conduct outlined in the law. “If due process required nothing more than notice,” they suggest, “then nothing would stop Congress from decreeing that a defendant shall be ‘deemed’ to have ‘consented’ to personal jurisdiction by engaging in any activity anywhere in the world.” Such a rule, they warn, would also increase the likelihood that other countries would enact similar laws, resulting in an increase in lawsuits against U.S. citizens and companies in foreign courts.
Like the federal government, the PLO and the PA resist the victims’ contention that the PSJVTA provides the kind of due process that was required in the Founding era history. “As members of this Court have explained,” they say, “when the proponent of a historical claim that would overturn longstanding precedent admits that it is speculative, wisdom counsels against adopting that position.”
And in any event, they conclude, the Supreme Court can uphold the 2nd Circuit’s ruling on the ground that the law violates the doctrine of the separation of powers by taking over the job of the courts. Specifically, they contend, the law tells courts that if the PLO or the PA engage in the activities described in the PSJVTA, they must find that the groups have consented to jurisdiction. But it is the job of the courts, rather than Congress, to determine whether a defendant has agreed to jurisdiction. And courts have already concluded, they write, that the activities of the PLO and the PA “are insufficient to support the exercise of jurisdiction under the” due process clause.
This post is also published on SCOTUSblog.
