Over the recorded dissents of four judges, the Second Circuit last week denied en banc review of two panel decisions that ruled that the federal courts lacked personal jurisdiction over the Palestine Liberation Organization and the Palestinian Authority in suits concerning deaths and injuries to United States citizens from terrorist attacks overseas. Specifically, the panel decisions in Fuld v. Palestine Liberation Organization and Waldman v. Palestine Liberation Organization ruled that a federal law enacted in 2019 that would have provided personal jurisdiction over the foreign defendants violated their Fifth Amendment right to due process.
Judge Steven Menashi wrote a dissent from the denial of en banc review. (It begins roughly halfway through the court’s order.) Chief judge Debra Ann Livingston and Judge Michael H. Park joined Menashi’s dissent in full, and Judge Richard J. Sullivan joined one part of it.
My initial reaction as I began reading the order was to wonder how the Due Process Clause of the Fifth Amendment would give the PLO and the Palestinian Authority any protections against being subjected to the jurisdiction of the federal courts. So I was pleased to discover that Judge Menashi in Part III of his dissent addresses this very issue. Menashi notes that the Supreme Court has “reserved judgment on ‘whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court’ as the Fourteenth Amendment does on a state court.” Further, he cites “recent scholarship”—including Max Crema & Lawrence B. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447 (2022) and Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020), for the proposition that the Fifth Amendment imposes no limits on the exercise of personal jurisdiction by the federal courts.
I hope very much that the Supreme Court will grant review in this case and give the issue the careful attention that it deserves.