Douglass v. Nippon Yusen Kabushiki

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

August 16, 2022

No. 20-30382 Lyle W. Cayce

Clerk

Stephen Douglass, Individually and as personal

representative of the Estate of Shingo Alexander

Douglass; Dora Hernandez, Individually and as

personal representative of the Estate of Noe

Hernandez; Lan Huynh, Individually and as personal

representative of the Estate of Ngoc Truong Huynh;

Darrold Martin, Individually and as personal

representative of the Estate of Xavier Alec Martin;

Erin Rehm, Individually and as personal representative

of the Estate of Gary Leo Rehm, Jr.; Lloyd Wayne

Rigsby, Jr., Individually and as personal representative

of the Estate of Dakota Kyle Rigsby; Carmen Sibayan,

Individually and as personal representative of the

Estate of Carlos Victor Ganzon Sibayan,

Plaintiffs—Appellants,

versus

Nippon Yusen Kabushiki Kaisha,

Defendant—Appellee,

consolidated with

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Jhon Alcide; Richard Allen-Easmon; Dustin Angle;

Jesus Arguello; Valerie Arguello, Et al

Plaintiffs—Appellants,

versus

Nippon Yusen Kabushiki Kaisha,

Defendant—Appellee.

Appeals from the United States District Court

for the Eastern District of Louisiana

USDC Nos. 2:19-CV-13688 & 2:19-CV-13691

Before Richman, Chief Judge, and Jones, Smith, Stewart,

Dennis, Elrod, Southwick, Haynes, Graves, Higginson,

Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and

Wilson, Circuit Judges.

Edith H. Jones, Circuit Judge, joined by Richman, Chief Judge, and

Smith, Stewart, Dennis, Southwick, Haynes, Costa, Ho,

Duncan, Engelhardt, and Wilson, Circuit Judges:*

The issue before the en banc court is whether a federal court may

exercise personal jurisdiction over a foreign corporation for federal claims,

which arise from injuries and deaths of American naval personnel in a

collision in foreign waters. To succeed, the plaintiffs must show either that

the foreign corporation is “at home” in the United States or that their claims

arise from or relate to the foreign corporation’s business activities in the

*

Judge Haynes concurs in the judgment only. Senior Judge King was a member of

the panel but chose not to participate in en banc rehearing.

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United States. The district court rejected the first alternative based on

substantial precedent; the plaintiffs foreswore, as they had to, reliance on the

second alternative. We AFFIRM.

I. Background

Nippon Yusen Kabushiki Kaisha (“NYK”), incorporated and

headquartered in Japan, is a major global logistics company that transports

cargo by air and sea. For its seaside operations, NYK owns or charters a

formidable fleet that includes bulk carriers, container ships (of all sizes), car

transporters, tankers, cruise ships, shuttle tankers, drillships, and LNG

carriers, among other vessels.1 NYK charters more than half of the ships it

uses to transport cargo.2 The vessels call port throughout the world.

Between 2017 and 2019, about seven percent of the worldwide port calls

made by NYK owned or chartered vessels were in the United States, totaling

about 1500 calls annually.

A natural consequence of NYK’s handling shipments bound for the

United States is that it occasionally litigates in American courts. Since 2010,

for example, NYK has filed around thirty lawsuits in federal courts, most

involving claims seeking freight charges owed under bills of lading.3 And

every so often, NYK and its ships are sued in American courts, typically for

1

NYK Group Fleet, NYK LINE FACT BOOK I 2019, at 8 (Apr. 26, 2019),

https://www.nyk.com/english/ir/library/fact/first/2019/__icsFiles/afieldfile/2019/10/

28/190426FB1E_1.pdf (last visited Oct. 23, 2021).

2

Id.

3

See, e.g., Complaint at 3-5, Nippon Yusen Kabushiki Kaisha v. GSF Nut Co., LLC,

No. 2:2017-cv-5614 (C.D. Cal. July 28, 2017), ECF No. 1; Complaint at 5-8, Nippon Yusen

Kabushiki Kaisha v. Multi-Trans Shipping Agency, Inc., No. 2:2016-cv-9523 (C.D. Cal. Dec.

23, 2016), ECF No. 1; Complaint at 3-5, Nippon Yusen Kabushiki Kaisha v. Wesmex Inc., No.

8:2014-cv-1910 (C.D. Cal. Dec. 3, 2014), ECF No. 1.

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cargo damaged en route to the United States or for injuries that occurred

during cargo operations in the United States.4

Among NYK’s approximately 1700 employees, about 25 are seconded

to NYK subsidiaries in the United States. Overall, NYK’s business in the

United States and North America makes up less than ten percent of its annual

revenue.

On June 17, 2017, the ACX Crystal, a 730-foot container ship

chartered by NYK,5 collided with the destroyer USS Fitzgerald in Japanese

territorial waters.6 As the ACX Crystal’s bow ripped through the Fitzgerald’s

4

See, e.g., Complaint at 1-5, Epperson v. NYK Line, No. 4:2019-cv-5948 (N.D. Cal.

Sept. 24, 2019), ECF No. 1 (negligence claim by American harbor pilot injured in United

States waters by allegedly faulty Jacob’s ladder); Complaint at 3-5, Neal v. NYK Line, No.

4:2013-cv-507 (N.D. Cal. Feb. 5, 2013), ECF No. 1 (negligence claim by longshoreman

involved in unloading NYK vessel in the United States); Complaint at 2-3, Starr Indem. &

Liab. Co. v. Yamato Transp. U.S.A., Inc., No. 2:2016-cv-4616 (C.D. Cal. June 24, 2016),

ECF No. 1 (damaged cargo); Complaint at 2-4, Great Am. Ins. Co. of N.Y. v. Hanjin

Shipping, No. 2:2015-cv-8798 (C.D. Cal. Nov. 11, 2015), ECF No. 1 (same); Complaint at

2-4, Beachside Produce, LLC v. Nippon Yusen Kabushiki Kaisha, No. 2:2015-cv-4951 (C.D.

Cal. June 30, 2015), ECF No. 1 (same).

5

NYK had a time charter for the ACX Crystal. A time charterer obtains use of a

ship in only a limited sense: The vessel’s owner “provides the vessel’s master and crew

and (depending on the circumstances) pays the normal operating expenses, while the

charterer obtains the commercial benefit of having its cargo carried.” David W.

Robertson, Steven F. Friedell, & Michael F. Sturley, Admiralty

and Maritime Law in the United States 325 (4th ed. 2020). In other words,

time charters “are more like taxis or limousine services or hotels than they are like typical

leases.” Id. Because the time charterer typically has little or no control over the vessel’s

navigation, it almost never bears liability for a collision stemming from navigational error.

See Moore v. Phillips Petroleum Co., 912 F.2d 789, 792 (5th Cir. 1990) (“The vessel owner

remains responsible for . . . navigational errors by the pilot and negligence by the

crew . . . .”) (citation omitted). Thus, even if the plaintiffs could establish personal

jurisdiction over NYK, their claims face other substantial hurdles.

6

The after-accident reports issued by the National Transportation Safety Board

and the Japanese Transport Safety Board largely fault the United States Navy for the

collision—neither report places any fault on NYK. See National Transportation Safety

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hull at midship, several compartments on the Fitzgerald flooded, killing seven

American sailors and injuring dozens of others. At the time of the collision,

the ACX Crystal, then a Philippine-flagged vessel, was on an intra-Asia trade

route. It has never called port in the United States.

Personal representatives of the seven sailors killed sued NYK in

federal court, asserting wrongful death and survival claims under the Death

on the High Seas Act, 46 U.S.C. § 30301 et seq. The injured sailors and their

family members sued NYK separately, asserting negligence and loss of

consortium claims.7 In both cases, the plaintiffs alleged that NYK, a foreign

corporation, is amenable to federal court jurisdiction under Fed. R. Civ.

P. 4(k)(2) based on its “substantial, systematic and continuous contacts with

the United States as a whole.” Neither complaint alleges that the injuries at

issue arose out of or relate to NYK’s contacts with the United States.

NYK moved to dismiss the suits for lack of personal jurisdiction under

Fed. R. Civ. P. 12(b)(2). The district court obliged, issuing identical

opinions. Relying on Patterson v. Aker Solutions Inc., 826 F.3d 231 (5th Cir.

2016), the district court held that the Fifth Amendment due process test for

personal jurisdiction governs this admiralty dispute and mirrors the

Fourteenth Amendment test. Applying the Fourteenth Amendment

standard, the district court concluded that NYK did not have sufficient

Board, Marine Accident Report: Collision Between US Navy Destroyer Fitzgerald and

Philippine-Fleg Container Ship ACX Crystal Sagami Nada Bay off Izu Peninsula, Honshu

Island, Japan July 17, 2017 (2020), https://www.ntsb.gov/investigations-

/AccidentReports/Reports/MAR 2002.pdf (last visited Oct. 23, 2021); Japan Transport

Safety Board, Marine Accident Investigation Report (Aug. 29, 2019), https://www.

mlit.go.jp/jtsb/eng-mar_report/2019 /2017tk0009e.pdf (last visited Oct. 23, 2021).

7

The injured sailors and the personal representatives of the sailors killed also sued

the ACX Crystal’s owner, Olympic Steamship Company, and its bareboat charterer, Vega

Carriers Corporation, both Panamanian corporations, in Japan for the same injuries at issue

in this lawsuit. See Appellee’s Rule 28(j) Letter dated Jan. 29, 2021.

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contacts with the United States to justify the court’s exercising personal

jurisdiction over it.

On appeal, the cases were consolidated. The panel affirmed the

judgment but suggested it would have reached a different result if not bound

by Patterson. Concurring, Judges Elrod and Willett opined that “our

interpretation of Fourteenth Amendment due process is shaped by

federalism concerns that are irrelevant to the Fifth Amendment context,”

and Patterson imposed an “unnecessary limitation” on Rule 4(k)(2). In their

view, Patterson “unwittingly limited Rule 4(k)(2) by collapsing the Fifth

Amendment and Fourteenth Amendment due process analyses.”

This court granted plaintiffs’ petition for rehearing en banc to

consider whether NYK is subject to jurisdiction in these cases.

II. Standard of Review

This court’s review of a Rule 12(b)(2) dismissal for lack of personal

jurisdiction is de novo. Patterson, 826 F.3d at 233 (citing Revell v. Lidov,

317 F.3d 467, 469 (5th Cir. 2002)).

III. Discussion

The Fifth Amendment due process standard governs the personal

jurisdiction inquiry in this lawsuit raising federal claims in federal court. The

en banc dispute centers on whether the Fifth Amendment standard mirrors

the “minimum contacts” and “fair play and substantial justice” principles

underlying the Fourteenth Amendment personal jurisdiction inquiry. Two

issues, considered in turn, logically precede that debate. First, we reject the

plaintiffs’ passing argument that NYK, as a foreign corporation, lacks Fifth

Amendment due process rights altogether and therefore cannot object to a

federal court’s assertion of personal jurisdiction over it. Second, we expose

the faulty premise underlying the plaintiffs’ contention that applying

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Fourteenth Amendment personal jurisdiction standards in Fifth Amendment

cases would render Rule 4(k)(2) a nullity.8

A. Foreign corporations litigating in federal court may challenge

the court’s personal jurisdiction under the Fifth Amendment Due

Process Clause.

The plaintiffs oddly contend that NYK, as a foreign corporation, has

no Fifth Amendment due process rights at all. In support, they cite cases

addressing whether constitutional rights extend to foreign persons acting

abroad. See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct.

2082, 2088 (2020) (holding that foreign subsidiaries of United States

companies do not have First Amendment rights); United States v. Verdugo-

8

This majority opinion addresses the exact arguments raised by the plaintiffs

consistently throughout the litigation. But for one point, we will not address the dissents’

wholly novel arguments, which pointedly divorce themselves from the parties’ theory of

the case. Post at 47 n.5 (“I disagree with both approaches because both start not with the

Fifth Amendment but with inapplicable Fourteenth Amendment case law.”). By standing

up for the law as it has been accepted unanimously among the circuit courts, we decline to

consider adversarially untested propositions. Moreover, the principal dissent’s criticism

that NYK bore some burden—to anticipate and analyze personal jurisdiction without any

reference to well-settled case law—is simply wrong. At the very least, it is the plaintiffs’

burden to establish the court’s jurisdiction in response to a Rule 12(b)(2) personal

jurisdiction challenge by a defendant. Johnson v. Multidata Sys. Int’l Corp., 523 F.3d 602,

609 (5th Cir. 2008).

If we were to address the merits of the principal dissent’s theory, however, we

would note its repeated insistence that, consistent with the Fifth Amendment, Congress

could pass a law to subject foreign defendants to American federal court jurisdiction for any

injuries inflicted on American citizens or claims arising abroad. Whether this is correct or

not, we do not assay. Moreover, we cannot analyze this theory because the dissent posits

no rule or limits flowing from the Fifth Amendment. And finally, no court has adopted the

dissent’s view that Rule 4(k)(2) alone suffices to extend substantive personal jurisdiction

to the constitutional limit, and the Rule’s language alone suggests otherwise. Fed. R.

Civ. P. 4(k)(2) (“[S]erving a summons . . . establishes personal jurisdiction over a

defendant if . . . exercising jurisdiction is consistent with the United States Constitution

and laws.”).

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Urquidez, 494 U.S. 259, 274-75, 110 S. Ct. 1056, 1065-66 (1990) (rejecting

contention that DEA’s search of a residence in Mexico violated non-citizen’s

Fourth Amendment rights).9 Here, however, NYK invokes its constitutional

due process rights in the course of litigation in the United States. Therefore,

any constitutional violation can occur only in the United States. Cf. Verdugo-

Urquidez, 494 U.S. at 264, 110 S. Ct. at 1060 (differentiating Fifth and

Fourth Amendment violations and concluding that unlike an “unreasonable

search and seizure,” a violation of the privilege against self-incrimination

“occurs only at trial”). The cases the plaintiffs rely on are thus inapposite.

Further, the plaintiffs’ argument is irreconcilable with the countless

cases where courts, including the Supreme Court, have afforded foreign

corporations due-process-based personal-jurisdiction protections under the

Fourteenth Amendment. See, e.g., Goodyear Dunlop Tires Operations, S.A. v.

Brown, 564 U.S. 915, 131 S. Ct. 2846 (2011); J. McIntyre Mach., Ltd. v.

Nicastro, 564 U.S. 873, 131 S. Ct. 2780 (2011); Asahi Metal Indus. Co. v.

Superior Ct. of Cal., 480 U.S. 102, 107 S. Ct. 1026 (1987). Thus, NYK can

object to a federal court’s unwarranted exercise of personal jurisdiction to

the same extent as a United States citizen.

B. Rule 4(k) is a procedural rule governing the territorial limits of

service.

Federal Rule of Civil Procedure 4(k)(2) states that, “[f]or a claim that

arises under federal law, serving a summons . . . establishes personal

jurisdiction over a defendant if: (A) the defendant is not subject to

9

The plaintiffs also rely on Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959,

1981-83 (2020), to support their claim. That case, however, is inapt here because it

addresses whether non-naturalized foreigners have due process rights to judicial review of

immigration decisions where Congress did not statutorily provide such review. Id.

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jurisdiction in any state’s courts of general jurisdiction; and (B) exercising

jurisdiction is consistent with the United States Constitution and laws.”

Throughout their briefing, the plaintiffs present Rule 4(k)(2) as the

substantive source of personal jurisdiction over NYK and contend that

adopting the Fourteenth Amendment standard would render Rule 4(k)(2) a

nullity. That rule-centric view obscures the purely constitutional nature of

the personal jurisdiction question at issue here. Rule 4(k)(2) is a procedural

rule governing the territorial limits of service. The text is expressly

subservient to the constitutional limits of due process. The rule does not—

and cannot—control the constitutional inquiry whether due process

prohibits a court from exercising personal jurisdiction over the defendant in

a given lawsuit.

Today, personal jurisdiction is typically exercised through a summons

to appear in court on pain of default. The valid exercise of jurisdiction

through a summons requires (1) notice of the command and (2) amenability

to the command. The notice requirement is procedural, and the amenability

requirement is substantive. Historically, those requirements were

inextricably intertwined because federal courts had jurisdiction over only

defendants that voluntarily appeared or were personally served in the

district.10 At the advent of the Federal Rules of Civil Procedure, the

10

Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 79 (“But no person shall be arrested

in one district for trial in another, in any civil action before a circuit or district court. . . .

And no civil suit shall be brought before either of said courts against an inhabitant of the

United States, by any original process in any other district than that whereof he is an

inhabitant, or in which he shall be found at the time of serving the writ . . . .”).

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procedural limitations on proper notice were basically the same.11 See Fed.

R. Civ. P. 4(f) (1938).

In 1945, however, the Supreme Court made clear that due process

permitted personal jurisdiction over a nonresident defendant as long as the

defendant had “certain minimum contacts with [the forum] such that the

maintenance of the suit does not offend ‘traditional notions of fair play and

substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316,

66 S. Ct. 154, 158 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463,

61 S. Ct. 339, 343 (1940)). After International Shoe, states began authorizing

out-of-state service.12 Rule 4 was amended in 1963 to allow service outside

the territorial limits of the state when authorized by state law.13 As the

territorial scope of service expanded, the due process limitations on personal

jurisdiction assumed greater independent significance. See, e.g., Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174 (1985); Helicopteros

Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868 (1984);

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559

(1980); Kulko v. Superior Ct. of Cal., 436 U.S. 84, 98 S. Ct. 1690 (1978).

Then came the 1993 Amendments. Rule 4 was completely rewritten

and what was Rule 4(f) became Rule 4(k). Relevant here, the new

Rule 4(k)(2), adopted in response to the Supreme Court’s decision in Omni

11

Fed. R. Civ. P. 4(f) advisory committee’s note (1937) (“This Rule enlarges

to some extent the present rule as to where service may be made. It does not, however,

enlarge the jurisdiction of the district courts.”).

12

Douglas D. McFarland, Dictum Run Wild: How Long-Arm Statutes Extended to the

Limits of Due Process, 84 B.U. L. Rev. 491, 492-97 (2004) (discussing the rise of state long-

arm statutes after International Shoe).

13

Fed. R. Civ. P. 4(f) advisory committee’s note (1963) (“The first sentence is

amended to assure the effectiveness of service outside the territorial limits of the State in

all the cases in which any of the rules authorize service beyond those boundaries.”).

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Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 108 S. Ct. 404 (1987),

assumed its current wording, although Rule 4(k) retained the old Rule 4(f)’s

caption, “Territorial Limits of Effective Service.” Fed. R. Civ. P. 4(k).

Notwithstanding the amendments, Rule 4(k) is still just a procedural

rule about issuing summonses. By law, the Federal Rules of Civil Procedure

cannot “abridge, enlarge or modify any substantive right,”

28 U.S.C. § 2072(b), and a rule expanding the scope of a court’s personal

jurisdiction would modify a substantive right no less than a rule expanding

subject matter jurisdiction. Further, the Advisory Committee that

recommended the 1993 Amendments recognized that “[t]here remain

constitutional limitations on the exercise of territorial jurisdiction by federal

courts over persons outside the United States.” Fed. R. Civ. P. 4(k)(2)

advisory committee’s note to 1993 amendment. No doubt service of a

summons under Rule 4(k)(2) establishes personal jurisdiction when

procedurally authorized by the Federal Rules and consistent with the

Constitution. But as the rule expresses, the efficacy of service remains

subject to the constitutional question whether a defendant is amenable to

jurisdiction. The plaintiffs’ consequentialist argument, that adopting a

certain due process test for personal jurisdiction under the Fifth Amendment

would render Rule 4(k)(2) a nullity, is textually and logically unsound.

C. The Fifth Amendment due process test for personal

jurisdiction mirrors the Fourteenth Amendment test.

This brings us to the heart of the dispute: Determining what standard

governs personal jurisdiction over defendants sued on federal claims in

federal court under the Fifth Amendment Due Process Clause.

NYK contends that the Fifth Amendment due process test for

personal jurisdiction parallels the Fourteenth Amendment test, except that

the Fifth Amendment test looks at contacts with the United States as a whole

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rather than any one state. On this basis, NYK continues, the tried and true

dichotomy between specific and general jurisdiction applies under the Fifth

Amendment. Because the plaintiffs do not allege that their claims arise out

of or relate to NYK’s contacts with the United States, NYK is amenable to

the district court’s jurisdiction only under a general jurisdiction theory,

which means NYK is amenable to jurisdiction if and only if its contacts are

“so continuous and systematic as to render it essentially at home in the”

relevant forum, the United States. Daimler AG v. Bauman, 571 U.S. 117, 139,

134 S. Ct. 746, 761 (2014) (quoting Goodyear, 564 U.S. at 920, 131 S. Ct. at

2851) (cleaned up).

The plaintiffs and their amici14 key off their interpretation of

Rule 4(k)(2) and contend that the Fifth and Fourteenth Amendment due

process requirements are critically different. They note first that the

Supreme Court has expounded on the Fourteenth Amendment due process

requirements for personal jurisdiction but has consistently reserved the Fifth

Amendment question. Additionally, while principles of interstate federalism

and individual liberty animate the Supreme Court’s Fourteenth Amendment

personal jurisdiction jurisprudence, the Fifth Amendment focuses on the

United States’ sovereign limits rather than the states’ reciprocal sovereign

limits, rendering federalism immaterial. Because the Fifth Amendment is

concerned with guaranteeing fairness for defendants rather than

circumscribing state court jurisdiction, a distinct and more permissive

standard is warranted. What is more, importing the Fourteenth Amendment

standards into the Fifth Amendment analysis would render Rule 4(k)(2)

14

Professors Helen Hershkoff, Arthur R. Miller, Alan B. Morrison, John E. Sexton,

and Adam N. Steinman filed an amicus curiae brief in this case supporting the plaintiffs.

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essentially nugatory. Finally, at a minimum, admiralty’s unique nature and

history necessitate a distinct standard.

In the plaintiffs’ view, the Fifth Amendment due process inquiry is

simply whether a defendant, sued on a federal claim, was doing enough

systematic and continuous business in the United States that it had fair notice

it could be subjected to suit in federal courts. Their novel theory eschews the

traditional distinction between general and specific personal jurisdiction and,

more specifically, advocates against applying recent Supreme Court general

jurisdiction cases like Daimler in favor of a barebones “continuous and

systematic” standard articulated in International Shoe and allegedly applied

heretofore in this court.

In Fourteenth Amendment vernacular, the plaintiffs’ proposed

personal jurisdiction test appears to dress a general jurisdiction theory in

specific jurisdiction garb. But even if they argued that their claims must in

some way be related to the foreign defendant’s continuous and systematic

contacts with the United States, the “related” prong of their proposed Fifth

Amendment personal jurisdiction test is toothless: If personal injury and

wrongful death claims caused in foreign waters by a foreign logistics

company’s chartered, foreign-registered vessel bound for a foreign country

are sufficiently related to that corporation’s shipping-related contacts with

the United States, then what isn’t? The plaintiffs’ conception of “related”

goes far beyond the Fourteenth Amendment’s “arise out of or relate to”

standard.

We reject the plaintiffs’ theory and hold that the Fifth Amendment

due process test for personal jurisdiction requires the same “minimum

contacts” with the United States as the Fourteenth Amendment requires

with a state. Both Due Process Clauses use the same language and serve the

same purpose, protecting individual liberty by guaranteeing limits on

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personal jurisdiction. Every court that has considered this point agrees that

the standards mirror each other. The plaintiffs’ rule-centric argument, that

importing the Fourteenth Amendment standards into the Fifth Amendment

context renders Rule 4(k)(2) a nullity, is unpersuasive and wrong. Finally,

the plaintiffs misinterpret the law underlying their argument about admiralty

law’s unique nature and history regarding jurisdiction over foreign

defendants.

1. The Due Process Clauses.

Limits on the scope of a court’s personal jurisdiction “flow[] not from

Art. III, but from the Due Process Clause.” Ins. Corp. of Ir. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099, 2104 (1982). Both

Due Process Clauses protect persons from the deprivation of “life, liberty, or

property, without due process of law.” U.S. Const. amend. V; amend.

XIV, § 1. The clauses differ only in that the Fifth Amendment Due Process

Clause limits the federal government, while the Fourteenth Amendment Due

Process Clause limits the states. Based on that dissimilarity, the plaintiffs

contend that the Fourteenth Amendment Due Process Clause vindicates

federalism principles that are irrelevant under the Fifth Amendment. No

doubt federalism is immaterial under the Fifth Amendment, but the

plaintiffs’ myopic emphasis on federalism misses the very core of due

process.

“Due process of law” traces its origins to the Great Charter of

individual liberty, Magna Carta.15 Individual liberty is what the Supreme

15

Magna Carta guaranteed that “[n]o free man shall be taken, imprisoned,

disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or

prosecute him, except by the lawful judgment of his peers and by the law of the land.” A.E.

Dick Howard, Magna Carta Text and Commentary 45 (rev. ed. 1998). At

the time of the Fifth Amendment’s ratification, people universally understood “due

process of law” to convey “the same meaning as the words ‘by the law of the land’” in

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Court emphasizes as the foundation of the personal jurisdiction requirement.

That requirement “represents a restriction on judicial power not as a matter

of sovereignty, but as a matter of individual liberty.” Ins. Corp. of Ir.,

456 U.S. at 702, 102 S. Ct. at 2104; see also Nicastro, 564 U.S. at 899-900,

131 S. Ct. at 2798 (Ginsburg, J., dissenting) (citing Ins. Corp. of Ir., 456 U.S.

at 703 n.10, 102 S. Ct. at 2104 n.10); Burger King, 471 U.S. at 471-72,

105 S. Ct. at 2181-82. International Shoe’s minimum contacts test secures

defendants’ individual liberty by protecting them against (1) the concrete

burden of “litigating in a distant or inconvenient forum,” World-Wide

Volkswagen, 444 U.S. at 292, 100 S. Ct. at 564, and (2) the abstract burden of

“submitting to the coercive power of a [forum] that may have little legitimate

interest in the claims in question.” Bristol-Myers Squibb Co. v. Superior Ct. of

Cal., 137 S. Ct. 1773, 1781 (2017). A forum’s “interest” in the litigation

depends on, inter alia, the relationship among the defendant, the forum, and

the litigation.

To be sure, federalism concerns are central to the Supreme Court’s

interpretation of the Fourteenth Amendment Due Process Clause.16 But

“federalism” is a proxy for the abstract burden of a defendant’s submitting

to the coercive power of a forum with little interest in the dispute. In

Insurance Corp. of Ireland, the Supreme Court explained that the “restriction

on state sovereign power described in World-Wide Volkswagen,” i.e., the

“federalism” aspect of Fourteenth Amendment due process, “must be seen

as ultimately a function of the individual liberty interest preserved by the Due

Magna Carta. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272,

276 (1856).

16

See, e.g. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. ---, 141 S. Ct. 1017,

1025, 1030 (2021); Bristol-Myers Squibb, 137 S. Ct. at 1780-81, 1788; World-Wide

Volkswagen, 444 U.S. at 293-94, 100 S. Ct. at 565-66.

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Process Clause.” 456 U.S. at 702 n.10, 102 S. Ct. at 2104 n.10. Indeed, “if

the federalism concept operated as an independent restriction on the

sovereign power of the court, it would not be possible to waive the personal

jurisdiction requirement”—an individual’s “actions cannot change the

powers of sovereignty, although the individual can subject himself to powers

from which he may otherwise be protected.” Id. In short, “federalism” is

not the quintessence of the personal jurisdiction analysis under the

Fourteenth Amendment Due Process Clause, it is a derivative concern.

Further, an analogous “federalism” dynamic may arise in the Fifth

Amendment context under the rubric of “international comity.”17 Just as a

state court’s exercising coercive power over an out-of-state defendant

offends Fourteenth Amendment due process when the relationship among

the defendant, the state, and the litigation is insufficient, so, too, may a

federal court’s exercising coercive power over a foreign non-resident

defendant offend Fifth Amendment due process when the relationship

among the defendant, the United States, and the litigation is insufficient.

Either situation potentially infringes individual liberty, though the impact of

foreign relations and national security surely can affect the United States’

“sovereign reach” in ways irrelevant to this case.

17

Consider, for instance, the international comity concerns implicated in this case.

Under the plaintiffs’ theory, virtually every foreign corporation with more than a nominal

amount of business in the United States can be haled into federal court for any federal claim.

Such a reading of the Due Process Clause would not “give[] a degree of predictability to

the legal system” that would allow corporations to reasonably “structure their primary

conduct with some minimum assurance as to where that conduct will and will not render

them liable to suit.” World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567. Even if

NYK were ultimately held amenable to federal court jurisdiction here, the same

international comity concerns may warrant forum non conveniens dismissal—especially

because concurrent litigation is pending in Japanese Courts.

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In any event, the plaintiffs’ focus on “federalism” concerns in the

Supreme Court’s Fourteenth Amendment jurisprudence is beside the point.

Federalism concerns are germane to specific jurisdiction—not general

jurisdiction, which is the only theory the plaintiffs advanced in the district

court.18 “Federalism” cannot matter for general jurisdiction. If a corporate

defendant is “at home” in the forum, by incorporation, principal place of

business, or otherwise, that forum has “complete and irresistible”

jurisdiction over it. J. Story, Commentaries on the Conflict

of Laws 911-12, (3d ed. 1846); see also Daimler, 571 U.S. at 127, 134 S. Ct.

at 754; Goodyear, 564 U.S. at 919, 131 S. Ct. at 2851; Helicopteros, 466 U.S. at

414 n.9, 104 S. Ct. at 1872 n.9. Plaintiffs’ proffered “federalism” differences

between the Fifth and Fourteenth Amendments are superfluous.

Because the Due Process Clauses use the same language and

guarantee individual liberty in the same way, it makes sense that the

standards developed in the Fourteenth Amendment context must govern

under the Fifth Amendment.

2. Courts all apply the Fourteenth Amendment “minimum

contacts” standard in Fifth Amendment cases.

This court and six other circuits apply Fourteenth Amendment due

process analysis to determine personal jurisdiction in cases governed by the

Fifth Amendment.

18

Compare Ford Motor Co., 141 S. Ct. at 1025, 1030 (raising “federalism” concerns

in specific personal jurisdiction case) and Bristol-Myers Squibb, 137 S. Ct. at 1780-81, 1788

(same) and World-Wide Volkswagen, 444 U.S. at 293-94, 100 S. Ct. at 565-66 (same) with

Daimler, 571 U.S. 117, 134 S. Ct. 746 (failing to raise “federalism” concerns in general

personal jurisdiction case); Goodyear, 564 U.S. 915, 131 S. Ct. 2846 (same); Helicopteros,

466 U.S. 407, 104 S. Ct. 1868 (1984) (same). But see Daimler, 571 U.S. at 157, 134 S. Ct. at

772 (Sotomayor, J., concurring in the judgment).

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Every Fifth Circuit decision addressing the scope of contacts required

for personal jurisdiction under the Fifth Amendment has applied the

then-existing Fourteenth Amendment framework.19 Relatedly, this court’s

Rule 4(k)(2) cases consistently recognize and invoke the general-specific

jurisdiction dichotomy, which the plaintiffs dismiss as irrelevant to the Fifth

Amendment.20 Paradigmatically, in Patterson, the court considered whether

general jurisdiction existed over a foreign defendant on a federal claim based

on its contacts with the United States as a whole. Patterson, 826 F.3d at 234.

In finding insufficient contacts with the United States to support general

jurisdiction, the court squarely relied on a then-recent Supreme Court

decision founded on the Fourteenth Amendment. Id. (citing Daimler, 571

U.S. 139, 134 S. Ct. at 761).

In practice, this court has found that a foreign corporation’s contacts

satisfy Fifth Amendment due process only in cases where the parties’ dispute

arose out of or related to those United States contacts, that is, where specific

jurisdiction existed.21 The Fifth Circuit has never found that a foreign

19

See, e.g., Patterson, 826 F.3d at 234 (relying on Fourteenth Amendment cases);

Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338, 343-45 (5th Cir. 2002) (same); Adams v.

Unione Mediterranea di Sicurta, 364 F.3d 646, 651-52 (5th Cir. 2004) (same).

20

See, e.g., Stutzman v. Rainbow Yacht Adventures Ltd., 265 F. App’x 402 (5th Cir.

2008) (per curiam); Quick Techs., 313 F.3d at 343-45; Submersible Sys., Inc. v. Perforadora

Cent., S.A. de C.V., 249 F.3d 413, 420 (5th Cir. 2001).

21

See Nagravision SA v. Gotech Int’l Tech. Ltd., 882 F.3d 494 (5th Cir. 2018)

(approving personal jurisdiction over foreign defendants where plaintiffs alleged that

defendants “use a network of servers located in various cities across . . . the United States

to engage in the unauthorized distribution of Nagravision’s control words in violation of

the DMCA and FCA”); Adams, 364 F.3d at 651-652 (finding sufficient contacts for

personal jurisdiction where foreign defendant insured steel shipment to United States and

“enabled prosecution of claims in the United States by providing claims agents and

surveyors” in United States).

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corporation’s contacts with the United States alone supported general

jurisdiction over unrelated lawsuits.22

The plaintiffs’ reliance on Adams v. Unione Mediterranea di Scurta,

364 F.3d 646 (5th Cir. 2004) is misplaced. This court determined that the

defendant, an Italian insurer, had “continuous and systematic contacts with

the United States as a whole.” Id. at 651-52. But the claims stemmed from a

cargo insurance policy covering a shipment to the United States. Id. at 648.

Adams represents a straightforward application of International Shoe’s

specific jurisdiction principles.23 See Int’l Shoe, 326 U.S. at 317, 66 S. Ct. at

22

See, e.g., De Leon v. Shih Wei Navigation Co., 269 F. App’x 487, 490-91 (5th Cir.

2008) (per curiam) (rejecting general personal jurisdiction theory); Stutzman,

265 F. App’x at 403-04 (same); Submersible Sys., 249 F.3d at 420-21.

Indeed, our research found no case accepting a general personal jurisdiction theory

under the Fifth Amendment like what plaintiffs propose here. See, e.g., Doe v. Buratai,

792 F. App’x 6, 9 (D.C. Cir. 2019) (per curiam); Morris ex rel. Or. Cascade Corp. v. Harley,

720 F. App’x 326, 329 (9th Cir. 2017) (per curiam); Wolf v. Celebrity Cruises, Inc.,

683 F. App’x 786, 793 (11th Cir. 2017) (per curiam); Schulman v. Inst. for Shipboard Educ.,

624 F. App’x 1002, 1006 (11th Cir. 2015) (per curiam) (applying Daimler’s test to reject

general personal jurisdiction under the Fifth Amendment); Abelesz v. OTP Bank, 692 F.3d

638, 660 (7th Cir. 2012) (relying on Goodyear, 564 U.S. 915); Fraser v. Smith, 594 F.3d 842,

850 (11th Cir. 2010); Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com. de Equip. Medico,

563 F.3d 1285, 1297 (Fed. Cir. 2009); Porina v. Marward Shipping Co., 521 F.3d 122, 129

(2d Cir. 2008); Saudi v. Northrop Grumman Corp., 427 F.3d 271, 276 (4th Cir. 2005); Saudi

v. Acomarit Maritimes Servs., S.A., 114 F. App’x 449, 456 (3d Cir. 2004); Base Metal

Trading, Ltd. v. OJSC “Novokuznetsky Aluminum Factory”, 283 F.3d 208, 215 (4th Cir.

2002); United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 620 (1st Cir. 2001); Consol. Dev.

Corp. v. Sherritt, Inc., 216 F.3d 1286, 1292-93 (11th Cir. 2000).

23

In Daimler, the Supreme Court laid to rest the pervasive fallacy that International

Shoe’s use of the words “continuous and systematic” describes the level of contacts

necessary for exercising general personal jurisdiction. The Court explained that “the

words ‘continuous and systematic’ were used in International Shoe to describe instances in

which the exercise of specific jurisdiction would be appropriate.” Daimler, 571 U.S. at 138,

134 S. Ct. at 761 (citing Int’l Shoe, 326 U.S. at 317, 66 S. Ct. at 159). The plaintiffs try to

resuscitate that debunked notion.

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159 (jurisdiction over a corporate defendant is proper “when the activities of

the corporation [in the forum] have not only been continuous and systematic,

but also give rise to the liabilities sued on” (emphasis added)).

Furthermore, the Second, Sixth, Seventh, Eleventh, Federal, and

D.C. Circuits all agree that no meaningful difference exists between the Fifth

and Fourteenth Amendments’ minimum contacts analyses.24 In Livnat v.

Palestinian Authority, 851 F.3d 45 (D.C. Cir. 2017), the court rejected the

same federalism-based arguments urged here. The court pointed out that the

Supreme Court instinctively relied on its Fourteenth Amendment personal

jurisdiction jurisprudence when presented with an argument that asserting

jurisdiction in a Foreign Sovereign Immunity Act case would violate the Fifth

Amendment Due Process Clause.25 Id. at 54 (citing Republic of Argentina v.

Weltover, Inc., 504 U.S. 607, 620, 112 S. Ct. 2160, 2169 (1992) (quoting

Burger King, 471 U.S. at 475, 105 S. Ct. at 2183)). The court noted that every

circuit to “expressly analyze[] whether the Fifth and Fourteenth

Amendment standards differ” agreed “that there is no meaningful difference

in the level of contacts required for personal jurisdiction.” Id. at 54-55

(citations omitted). The court rejected the argument that the Fourteenth

Amendment’s federalism concerns fundamentally differentiate it from the

24

Livnat v. Palestinian Auth., 851 F.3d 45, 54-55 (D.C. Cir. 2017); Waldman v.

Palestine Liberation Org., 835 F.3d 317, 330 (2d Cir. 2016); Carrier Corp. v. Outokumpu Oyj,

673 F.3d 430, 449 (6th Cir. 2012); Abelesz, 692 F.3d at 660; Oldfield v. Pueblo de Bahia Lora,

S.A., 558 F.3d 1210, 1219 n.25 (11th Cir. 2009); Porina, 521 F.3d at 127-29; Deprenyl Animal

Health, Inc. v. Univ. of Toronto Innovations Found., 297 F.3d 1343, 1350 (Fed. Cir. 2002).

25

To be sure, the defendants in that case only raised the personal-jurisdiction

argument “as an aid in interpreting” FSIA’s direct-effect requirement. Republic of

Argentina v. Weltover, Inc., 504 U.S. 607, 619 n.2, 112 S. Ct. 2160, 2169 n.2 (1992)

(quotation omitted). But that in no way minimizes the significance of the fact that the

Supreme Court’s first instinct, when presented with a question of Fifth Amendment

personal jurisdiction, was to turn to its Fourteenth Amendment precedent.

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Fifth Amendment precisely because a “‘vital’ purpose of

personal-jurisdiction standards is to ‘ensure[] fairness to the defendant’”

and “protect ‘the sovereign concerns of other nations’ whose courts might

otherwise adjudicate the claims.” Id. at 55 (quoting Stabilisierungsfonds Fur

Wein v. Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 203 n.4 (D.C. Cir.

1981) (per curiam)). Such considerations “weigh at least as heavily in the

Fifth Amendment context” as they do in the Fourteenth Amendment

context. Id. And not insignificantly, the court notes that “[a]pplying

consistent personal-jurisdiction standards under the Fifth and Fourteenth

Amendments is . . . easier to administer.” Id. at 55-56.

In the face of consistent authority from this and a large majority of the

circuits, we decline to jury rig a novel personal jurisdiction test under the

Fifth Amendment. We are not encouraged to do so because the Supreme

Court has occasionally reserved deciding the question whether “the Fifth

Amendment imposes the same restrictions on the exercise of personal

jurisdiction by a federal court” as does the Fourteenth Amendment on state

courts.26 See Bristol-Myers Squibb, 137 S. Ct. at 1784; Nicastro, 564 U.S. at

885, 131 S. Ct. at 2790; Omni Capital, 484 U.S. at 102 n.5, 108 S. Ct. at 408

n.5; Asahi, 480 U.S. at 113 n.*. Most recently, members of the Court seemed

uncertain about the tried and true Fourteenth Amendment standards. See

Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1032-33 (2021)

(Alito, J., concurring); Id. at 1034-35, 1038 (Gorsuch, J., concurring). Far be

26

It appears that the Court reserved only the predicate question whether it is

appropriate under the Fifth Amendment to consider “national contacts, rather than . . . the

contacts between the defendant and the State in which the federal court sits.” Asahi,

480 U.S. at 113 n.* (emphasis added); see also Bristol-Myers Squibb, 137 S. Ct. at 1784 (citing

Omni Capital, 484 U.S. at 102, n.5, which cites Asahi); Nicastro, 564 U.S. at 885, 131 S. Ct.

at 2790 (citing Asahi, 480 U.S. at 113 n.*) (plurality); Omni Capital, 484 U.S. at 102 n.5,

108 S. Ct. at 408 n.5 (citing Asahi, 480 U.S. at 113 n.*). No one here disputes the

applicability of national contacts under the Fifth Amendment.

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it for this lower court to muddy the waters further on a critical issue that

precedes litigation in every federal court.

3. Rule 4(k)(2) is not rendered a nullity.

To support their proposed test, the plaintiffs contend that employing

Fourteenth Amendment personal jurisdiction standards in the Fifth

Amendment context renders Rule 4(k)(2) a nullity.27 The argument is both

unpersuasive and belied by a formidable body of precedent.

As already explained, Rule 4(k)(2) is a procedural rule governing the

territorial limits of effective service. The Fifth Amendment due process

limitations on a federal court’s exercising jurisdiction over a foreign

defendant exist independently of Rule 4(k)(2) and are indeed contemplated

by the Rule itself. Rendering an interpretation of the Fifth Amendment based

on the effects that choice has on Rule 4(k)(2) would let the procedural tail

wag the constitutional dog.

More important, courts are routinely employing Fourteenth

Amendment personal jurisdiction standards in the Fifth Amendment

context, yet Rule 4(k)(2) cases involving specific personal jurisdiction have

arisen and continue to arise with regularity. See, e.g., CGC Holding Co. v.

Hutchens, 974 F.3d 1201 (10th Cir. 2020); Compania de Inversiones

Mercantiles, S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V., 970 F.3d

1269 (10th Cir. 2020); Plixer Int’l, Inc. v. Scrutinizer GmbH, 905 F.3d 1 (1st

27

Although the plaintiffs do not say so explicitly, perhaps their argument is that

adopting Daimler’s “at home” requirement would render Rule 4(k)(2) inapplicable in

general personal jurisdiction cases. That might be true. But even so, it is hardly troubling

that federal courts can rarely, if ever, exercise personal jurisdiction over foreign defendants

in cases raising claims that do not “arise out of or relate to” their contacts with the United

States. Cf. Daimler, 571 U.S. at 140-42, 134 S. Ct. at 762-63 (chastising Ninth Circuit for

failing to give heed to the “risks to international comity its expansive view of general

jurisdiction posed”).

22

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Cir. 2018); M-I Drilling Fluids UK Ltd. v. Dynamic Air Ltda., 890 F.3d 995

(Fed. Cir. 2018); Adams, 364 F.3d 646; ISI Int’l, Inc. v. Borden Ladner Gervais

LLP, 256 F.3d 548 (7th Cir. 2001). The plaintiffs’ rhetoric fades in the face

of reality.

4. No admiralty law exception exists.

At a minimum, the plaintiffs contend, this case warrants a

more-indulgent personal jurisdiction standard because it involves admiralty

claims and admiralty is special. Admiralty, they point out, is uniquely a

creature of federal common law in addition to state and federal statutory law.

Admiralty’s broad jurisdiction has been described as extending “to all acts

and torts done upon the high seas, and within the ebb and flow of the sea.”

2 Joseph Story, Commentaries on the Constitution of

the United States 450, § 1665 (4th ed. 1873). Indeed, in no other

context do courts “have complete jurisdiction over suits . . . between

foreigners.” Langnes v. Green, 282 U.S. 531, 544, 51 S. Ct. 243, 248 (1931).

The Fifth Circuit has long claimed expertise in and appreciation for

admiralty’s tradition and peculiar jurisprudence, but shibboleths cannot

carry the plaintiffs’ argument. In fact, there is no textual support in the Fifth

Amendment for the plaintiffs’ proffered distinction and no case law favoring

their theory. About an admiralty “exception” to principles of personal

jurisdiction, no more need be said: The Due Process Clauses contain no

exception.

Further, plaintiffs’ historical argument misunderstands The

Belgenland, 114 U.S. 355, 5 S. Ct. 860 (1885), on which they principally rely.

In that case, a federal court adjudicated a dispute arising out of a collision on

the high seas between a Norwegian ship and a Belgian ship. 114 U.S. at 356-

58, 5 S. Ct. at 860-61. The federal courts exercised in rem jurisdiction over

the foreign ship, jurisdiction obtained because a U.S. marshal arrested the

23

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vessel at port in the federal court’s district. 114 U.S. at 356, 5 S. Ct. at 860.

Because a court’s jurisdiction over a ship arrested in its own district is

unassailable, personal jurisdiction there was a nonissue. Cf. Burnham v.

Superior Ct. of Cal., 495 U.S. 604, 619, 110 S. Ct. 2105, 2115 (1990) (plurality)

(concluding that “jurisdiction based on physical presence alone constitutes

due process because it is one of the continuing traditions of our legal system

that define the due process standard of ‘traditional notions of fair play and

substantial justice’”).28 The plaintiffs have confused personal jurisdiction

with subject matter jurisdiction, which the Supreme Court discussed in The

Belgenland. In sum, the plaintiffs’ proposed admiralty-exclusive extension of

due process standards for personal jurisdiction standard is all wet.

D. NYK is not amenable to jurisdiction in this dispute.

The foregoing discussion explains why the standards governing

personal jurisdiction are essentially the same under the Fifth and Fourteenth

Amendment Due Process Clauses. For federal claims filed in federal courts,

of course, the relevant minimum contacts are those with the entire United

States, not a forum state. The Fifth Amendment Due Process Clause

immunizes a non-resident, non-consenting defendant against a federal

court’s jurisdiction unless that defendant has “certain minimum contacts

with [the United States] such that the maintenance of the suit does not offend

‘traditional notions of fair play and substantial justice.’” Int’l Shoe, 326 U.S.

at 316, 66 S. Ct. at 158. Whether a defendant has “minimum contacts” with

a forum depends on the nature and extent of “the defendant’s relationship

to the forum.” Bristol-Myers, 137 S. Ct. at 1779. The focus on the

28

It is true that Pennoyer v. Neff, 95 U.S. 714 (1877), preceded The Belgenland by a

few years and was the first case in which the Supreme Court linked personal jurisdiction

with due process. As explained above, however, the latter case did not impinge on

Pennoyer’s analysis.

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defendant’s relationship with the forum underlies the general-specific

jurisdiction dichotomy. See Goodyear, 564 U.S. at 919, 131 S. Ct. 2851.

General jurisdiction is the sole avenue for exercising jurisdiction over

NYK here, because that is the only theory argued to the district court.29

General jurisdiction extends to “any and all” claims against the defendant

concerning events and conduct anywhere in the world. Id. But that breadth

comes with a reciprocal limit: “Only a select ‘set of affiliations with a forum’

will expose a defendant to such sweeping jurisdiction.” Ford Motor Co.,

141 S. Ct. at 1024 (quoting Daimler, 571 U.S. at 137, 134 S. Ct. at 760).

Normally, a corporation is “at home” in its “place of incorporation and

principal place of business.” Daimler, 571 U.S. at 137, 134 S. Ct. at 760. But

in an “exceptional case . . . a corporation’s operations in a forum other than

its formal place of incorporation or principal place of business may be so

substantial and of such a nature as to render the corporation at home in [the

United States].” Id. at 139 n.19.

Exercising general jurisdiction over NYK does not comport with its

Fifth Amendment due process rights. NYK is incorporated and

headquartered in Japan. As a result, exercising general jurisdiction over

NYK would require that its contacts with the United States “be so

substantial and of such a nature to render [it] at home” in the United States.

Daimler, 571 U.S. at 139 n.19, 134 S. Ct. at 761 n.19. Perkins v. Benguet

Consolidated Mining Co., 342 U.S. 437, 72 S. Ct. 413 (1952) remains the

lodestar for such exceptional circumstances. In Perkins, the defendant,

29

In the district court, the plaintiffs made clear that they did “not contend that the

Court has specific jurisdiction over NYK,” rather, they asserted that the court “has general

jurisdiction over NYK.” To the extent plaintiffs contend for the first time in this court that

the district court could exercise specific jurisdiction over NYK, their argument is waived.

FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994).

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Benguet, was a Filipino corporation that operated gold and silver mines in the

Philippines. Id. at 439. During World War II, Benguet’s president relocated

to Ohio and ran the company’s operations from there. Id. at 447-48. Ohio

state courts could exercise jurisdiction over Benguet because “Ohio was the

corporation’s principal, if temporary, place of business.” Keeton v. Hustler

Mag., Inc., 465 U.S. 770, 780 n.11, 104 S. Ct. 1473, 1481 n.11 (1984).

Not so with NYK and the United States. No doubt NYK’s contacts

with the United States are, in absolute terms, substantial. NYK ships call on

at least fifty U.S. ports, and NYK even dedicates several ships exclusively to

delivering cars between Japan and the United States. At one time, it operated

twenty-seven shipping terminals and six air-cargo terminals in the United

States.30 Overall, its North American entities generate about $1.47 billion in

consolidated revenue every year.31

But determining whether a defendant’s contacts are “so substantial

and of such a nature as to render the corporation at home” in the forum is an

inherently comparative inquiry. Daimler, 571 U.S. at 139 nn.19, 20, 134 S. Ct.

at 761-62 nn.19, 20. And comparatively, NYK’s contacts with the United

States comprise only a minor portion of its worldwide contacts. As the

district court recognized: “All of NYK Line’s high-level decision-making

takes place in Japan, and port calls made to the United States represent just

six to eight percent of all port calls made by NYK Line worldwide.

30

NYK Group, Fact Book I 2017, 13-15 (Apr. 28, 2017),

https://www.nyk.com/english/ir/library/fact/first/2017/__icsFiles/afieldfile/2019/10/

17/2017_factbook01_all.pdf (last visited Oct. 23, 2021).

31

The plaintiffs also draw attention to the fact that NYK often litigates in federal

court, pointing out that, over the last decade, NYK has filed at least thirty lawsuits in

federal district courts, and that over thirty lawsuits were filed against NYK in federal

district courts. That a particular corporate defendant frequently litigates in a forum’s

courts also has no bearing on whether that defendant is essentially “at home” in the forum.

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Furthermore, NYK Line’s American employees represent less than 1.5

percent of all [its] employees.” Therefore, the United States is hardly “the

center of [NYK’s] activities” or a “surrogate for [NYK’s] place of

incorporation or head office.” Daimler, 571 U.S. at 130 n.8, 134 S. Ct. at 756

n.8. The district court’s determinations are not clearly erroneous, nor did it

apply the law incorrectly. Accordingly, NYK is not amenable to the general

jurisdiction of American courts despite its contacts with the United States.

IV. Conclusion

Seventy-six years ago, Justice Frankfurter opined that “[t]o suppose

that ‘due process of law’ meant one thing in the Fifth Amendment and

another in the Fourteenth is too frivolous to require elaborate rejection.”

Malinski v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J., concurring).

After considerable elaboration, this court confirms his intuition. We reject

the plaintiffs’ invitation to craft an atextual, novel, and unprecedented Fifth

Amendment personal jurisdiction standard. Under the Supreme Court’s

reigning test for personal jurisdiction, the district court’s well-reasoned

judgment absolving NYK from appearing in federal court is AFFIRMED.

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James C. Ho, Circuit Judge, joined by Costa, Circuit Judge, concurring:

The Fifth Amendment provides that no person may be “deprived of

life, liberty, or property, without due process of law.” U.S. Const. amend.

V. Everyone agrees that this language applies only to the federal government,

and that that’s why we have the Fourteenth Amendment—to ensure that the

states too may not “deprive any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV.

There’s no denying the textual parallel between the Fifth and

Fourteenth Amendments. That’s why the majority today understandably

construes “due process of law” to mean the same thing under the Fifth and

Fourteenth Amendments alike.

Moreover, that approach is not only sensible as a textual matter—it

also makes for a simpler body of federal constitutional law. Our legal system

is already complex enough for litigants and lawyers, without additionally

forcing people to navigate two distinct bodies of federal constitutional rights,

depending on who’s on the right side of the “v.”

Accordingly, the majority reasonably holds—as has every other

circuit to have addressed the issue—that, when faced with a Fifth

Amendment question concerning personal jurisdiction, we apply Fourteenth

Amendment precedent governing personal jurisdiction.

The lead dissent responds that the meaning of words can change over

time. See post, at 43–44, 63 (Elrod, J., dissenting). As it correctly notes, the

Fifth Amendment was ratified in 1791—while the Fourteenth Amendment

was not ratified until 1868, three quarters of a century later. So the lead

dissent suggests that, whatever “due process” may have meant in 1868,

fidelity to original public meaning requires us to separately inquire whether

“due process” may have meant something different in 1791.

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That’s fair enough, as an intellectual matter. But in fairness to the

majority, the lead dissent does not point to a single Supreme Court decision

holding that we should interpret Fifth Amendment due process differently

from Fourteenth Amendment due process.

It simply says that the Supreme Court has reserved the issue. See post,

at 43 (Elrod, J., dissenting) (citing French v. Barber Asphalt Pav. Co., 181 U.S.

324, 328 (1901)). For example, it points out that a majority of the Supreme

Court once noted the possibility that a situation “may arise” in which it

“may be proper” to construe the Fifth and Fourteenth Amendments

differently. French, 181 U.S. at 328.

But French was issued before the Court embraced the doctrine of

incorporation. I write separately to explain how the Supreme Court’s

approach to incorporation is hard to square as a logical matter with the lead

dissent’s theory of linguistic drift under the Due Process Clause.

I.

Under the doctrine of incorporation, the Supreme Court has

repeatedly held that we should interpret the Due Process Clause of the

Fourteenth Amendment coextensively with a number of the provisions

contained in the Bill of Rights. As a result, when it comes to rights that are

incorporated against the states by the Due Process Clause, we apply the same

body of law to the states that we do to the federal government.

The Supreme Court most recently reaffirmed these principles in the

context of the Second Amendment right to keep and bear arms. Like the

Fifth Amendment, “[t]he Second Amendment was adopted in 1791; the

Fourteenth in 1868.” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, _ U.S. _,

_ (2022). “For decades, the Supreme Court has referred to the Second

Amendment as a fundamental civil right, comparable to other provisions of

the Bill of Rights.” Mance v. Sessions, 896 F.3d 390, 398 (5th Cir. 2018) (Ho,

29

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J., dissenting from denial of rehearing en banc) (citing, e.g., Johnson v.

Eisentrager, 339 U.S. 763, 784 (1950)).

Yet everyone agrees that the Second Amendment, like the Fifth

Amendment, applies only to the federal government—hence the Fourteenth

Amendment, which the Supreme Court has interpreted to apply fundamental

rights like the Second Amendment to the states. See McDonald v. City of

Chicago, 561 U.S. 742 (2010).

But if the Second Amendment is just like the Fifth Amendment—

because both provisions precede the ratification of the Fourteenth

Amendment by 77 years—does that mean that the right to keep and bear arms

might apply differently to the United States than to the several states?

The Supreme Court has repeatedly held that the answer is no: “Bill

of Rights protections” like the Second Amendment must “be enforced

against the States under the Fourteenth Amendment according to the same

standards that protect those personal rights against federal encroachment.”

McDonald, 561 U.S. at 765 (cleaned up) (emphasis added). See also N.Y. State

Rifle, _ U.S. at _ (same).

There is, to be sure, a “scholarly debate” over whether courts should

look to “the prevailing understanding of an individual right when the

Fourteenth Amendment was ratified in 1868” or “the public understanding

of the right when the Bill of Rights was adopted in 1791” when determining

the scope of constitutional rights. Id. at _.

But the Supreme Court has held on numerous occasions that, whether

we define the right as it existed in 1791 or in 1868, the right is the same against

the federal government and the states alike. “[W]e have made clear that

individual rights enumerated in the Bill of Rights and made applicable against

the States through the Fourteenth Amendment have the same scope as against

the Federal Government.” Id. (emphasis added).

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The Court cited several examples where it has taken that approach.

See, e.g., Ramos v. Louisiana, 590 U.S. _, _ (2020) (“This Court has long

explained . . . that incorporated provisions of the Bill of Rights bear the same

content when asserted against States as they do when asserted against the

federal government.”) (emphasis added); Timbs v. Indiana, 586 U.S. _, _

(2019) (“[I]f a Bill of Rights protection is incorporated, there is no daylight

between the federal and state conduct it prohibits or requires.”) (emphasis

added); Malloy v. Hogan, 378 U.S. 1, 10–11 (1964) (“The Court thus has

rejected the notion that the Fourteenth Amendment applies to the States

only a watered-down, subjective version of the individual guarantees of the

Bill of Rights.”) (quotations omitted).

To this list of examples, I’ll add one more. The Court has decided

various challenges to state abortion laws—including the partial birth abortion

law that it held unconstitutional in Stenberg v. Carhart, 530 U.S. 914 (2000).

In Gonzales v. Carhart, 550 U.S. 124 (2007), the Court addressed a

constitutional objection to the federal Partial Birth Abortion Act.

Tellingly, the United States government did not even try to defend—

and the Court did not uphold—the federal Partial Birth Abortion Act on the

ground that Fifth Amendment due process is different from Fourteenth

Amendment due process. Not a single justice even flagged it as a potential

issue. Justice Thomas wrote separately to reaffirm his longstanding view that

“the Court’s abortion jurisprudence . . . has no basis in the Constitution”

without attempting to draw any distinction between the Fifth and Fourteenth

Amendments (as well as to ask, without deciding, whether the Act is allowed

under the Commerce Clause). Id. at 168–69 (Thomas, J., concurring).1

1

Nor was the argument presented by any of the parties in Carhart. The argument

was made only by amicus, and only in the court of appeals, which rejected the argument on

the merits. See Carhart v. Gonzales, 413 F.3d 791, 795 n.2 (8th Cir. 2005) (“One amicus

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II.

I see logical difficulties in squaring the dissenters’ theory of linguistic

drift with the Supreme Court’s longstanding incorporation jurisprudence.

To be sure, I’m all for following the text and original understanding of

the Constitution to the maximum extent permitted by a faithful reading of

Supreme Court precedent, as I’ve repeatedly noted. See, e.g., Williams v.

Taylor Seidenbach, Inc., 958 F.3d 341, 350 (5th Cir. 2020) (en banc) (Ho, J.,

concurring); Texas v. Rettig, 993 F.3d 408, 409, 417–18 (5th Cir. 2021) (Ho,

J., dissenting from denial of rehearing en banc); Williams v. Homeland Ins.

Co., 18 F.4th 806, 818–19 (5th Cir. 2021) (Ho, J., concurring). And

reasonable minds can debate in good faith the Supreme Court’s personal

jurisdiction precedent, and ask whether it is faithful to the original

understanding of the Constitution. Cf. Ford Motor Co. v. Mont. Eighth Jud.

Dist. Ct., 592 U.S. _, _ & n.2 (2021) (Gorsuch, J., concurring) (citing

differing views).

But the members of this court all agree that fidelity to Supreme Court

precedent must trump fidelity to text and original public meaning. And that

means reading precedent faithfully. “Lower court judges don’t have license

to adopt a cramped reading of a case in order to functionally overrule it.”

NLRB v. Int’l Ass’n of Bridge, Structural, Ornamental, & Reinforcing Iron

Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay,

J., dissenting from denial of rehearing en banc) (quotations omitted). See also

suggests Stenberg does not control because that case was decided under the Fourteenth

Amendment, which, of course, does not apply to the federal government. While Stenberg

was indeed a Fourteenth Amendment case, the Due Process Clause of the Fifth

Amendment is textually identical to the Due Process Clause of the Fourteenth

Amendment, and both proscribe virtually identical governmental conduct.”) (citing

Malloy, 378 U.S. at 8). The amicus declined to reprise the argument in the Supreme Court.

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Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU

J.L. & Liberty 44, 51 (2019) (“Of course, judges can always draw razor-

thin distinctions and contend that a particular issue is not governed by a non-

originalist precedent. But judges should resist this temptation.”). “[L]ogic

[may] demand[] that we extend an [allegedly] atextual body of precedent in

order to preserve rationality or consistency in the law.” Williams, 18 F.4th

at 821 (Ho, J., concurring).

Under the doctrine of incorporation, the Supreme Court has

repeatedly instructed that we must interpret the Due Process Clause of the

Fourteenth Amendment coextensively with various provisions of the Bill of

Rights. And therein lies the logical challenge I see with the dissent’s

proposed framework. For if we accept the dissenters’ theory of linguistic

drift when it comes to due process, logic would presumably require that we

entertain the possibility of linguistic drift in every aspect of due process.

For example, what does the First Amendment require when it comes

to the states? Well, we know the First Amendment might have meant one

thing in 1791, but something quite different in 1868. And so too with the

Second Amendment, the Fourth Amendment, the Eighth Amendment, and

so on.

So presumably the dissenters would apply a different body of First

Amendment law, Second Amendment law, and so on, to the states as

opposed to the federal government, in recognition of the possibility of

linguistic drift between 1791 and 1868.

But we don’t do that. Because the Supreme Court has told us we can’t

do that—most recently, in N.Y. State Rifle.

And that’s the logical problem I see with the dissent’s approach. If

Supreme Court precedent requires us to apply the same standard of “due

process” to the states and the federal government when it comes to other

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constitutional rights like the First and Second Amendments, what’s the logic

in applying different standards when it comes to due process itself?

If we’re being principled about linguistic drift, we presumably

wouldn’t limit it to just the Fifth Amendment—or just the Due Process

Clause of the Fifth Amendment. We would either allow for linguistic drift

with respect to every provision of the Bill of Rights—or to none of them.

To my mind, logical fidelity to Supreme Court precedent would seem

to suggest that the answer must be none.

III.

In response, the lead dissent says that “due process” is different

inasmuch as, unlike the incorporated provisions, it’s actually codified in the

text of the Fourteenth Amendment. See post, at 45–46 n.4 (Elrod, J.,

dissenting).

That’s obviously true as far as it goes: due process explicitly appears

in the text of the Fourteenth Amendment, while the incorporated provisions

are implicit in due process by operation of Supreme Court precedent.

But why should that matter? The dissent doesn’t explain. And it’s

hard to understand, especially considering that Supreme Court precedent

essentially directs us to act as if the words of the First Amendment, the

Second Amendment, and so on appear alongside the Due Process Clause in

the Fourteenth Amendment. See, e.g., McDonald, 561 U.S. at 791 (“[A]

provision of the Bill of Rights that protects a right that is fundamental from

an American perspective applies equally to the Federal Government and the

States. We therefore hold that the Due Process Clause of the Fourteenth

Amendment incorporates the Second Amendment.”) (citation omitted).

Moreover, the dissent’s logic, if anything, gets things exactly

backwards. The Fifth and Fourteenth Amendment Due Process Clauses use

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the same words—and so that’s the reason we should apply different

standards? It’s a curious way to split the baby.

Nor do I understand what the dissent hopes to accomplish by drawing

a distinction between “reverse” versus “plain-vanilla” incorporation. See

post, at 45 n.4 (Elrod, J., dissenting). I’ll just sum things up this way:

Everyone agrees that both the federal government and the states are subject

to due process. And everyone agrees that this includes not only due process

qua due process, but also various other provisions in the Bill of Rights. The

only disagreement is whether we should apply the same legal standards under

various provisions in the Bill of Rights—except for “due process” itself. If

there’s a case for applying one body of law when it comes to all the provisions

that due process incorporates, but two bodies of law when it comes to due

process itself, I’m not sure what it is, and I’m not sure that the dissenters

have made it.

IV.

As for Judge Oldham’s solo dissent, I’ll begin by noting where we

substantially agree. Like me, Judge Oldham makes clear that he does not

endorse the lead dissent’s theory of linguistic drift. See post, at 101 (Oldham,

J., dissenting). Like me, Judge Oldham does not say that there are two

distinct bodies of due process law, one that governs the states and another

that governs the federal government. Rather, he suggests that “none of the

personal-jurisdiction limits—for any government, state or federal—come

from the Fifth or Fourteenth Amendments,” but rather, “[t]hey instead

come from the common law.” Id. at 102–03 n.1.

So we agree that there is one body of due process law, not two. Here’s

where we part company, then: If we’re agreed that there’s only a single body

of due process law, then I don’t see how we can ignore Supreme Court

precedent under Fourteenth Amendment due process in a case involving

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Fifth Amendment due process. And that’s where my reference to the

doctrine of incorporation comes in.

Judge Oldham dismisses my invocation of the incorporation doctrine

on the ground that that is a doctrine of substantive due process—whereas

this is a personal jurisdiction case, which implicates procedural due process.

See id. at 102. He makes the same observation about the judicially-created

right to abortion examined in Carhart. See id. at 103.

He’s of course entirely right that both the incorporation doctrine

generally, and abortion in particular, are creatures of substantive due process.

But I don’t see why the substantive/procedural due process distinction

should make any difference here.

To explain why, let me first summarize his core argument. It proceeds

like this: “The Supreme Court has confessed that its Fourteenth

Amendment personal jurisdiction precedents do not rest on original public

meaning.” Id. at 102. Accordingly, he concludes, as originalists, we’re

allowed to ignore that body of law, which applies only to states, when it comes

to Fifth Amendment cases, which involve the federal government. Id.

My response is that that is the opposite of what we do under the

doctrine of incorporation—where we apply the same body of law to the states

and the federal government.

It’s also the opposite of what happened in Carhart. Just like the

Court’s personal jurisdiction precedents, the Supreme Court’s abortion

precedents “do not rest on original public meaning” (at least not before

Dobbs). Id. Yet, as I point out, the federal government did not even bother

to argue in Carhart that it can ignore the Court’s Fourteenth Amendment

abortion law when it comes to Fifth Amendment cases.

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Yes, those examples come from substantive due process—whereas

this case involves procedural due process. But I’m not sure why we would

apply one approach to precedent in substantive due process cases (follow the

14th when it comes to the 5th), and precisely the opposite approach to

precedent in procedural due process cases (ignore the 14th when it comes to

the 5th). I would have thought that our duty to be faithful to Supreme Court

precedent doesn’t wax and wane depending on which underlying body of law

the precedent entails.

Finally, in a footnote, Judge Oldham notes that the Supreme Court

has repeatedly declined to address the question of divergence in personal

jurisdiction cases even after it started incorporating various other provisions.

See id. at 103 n.2. Again, that’s true, I just don’t know what it proves. The

Supreme Court ordinarily does not weigh in on issues absent a circuit split.

And here, there is none—every circuit to have addressed the issue has

rejected the theory of divergence when it comes to personal jurisdiction.

V.

One final concern before I close: Embracing the linguistic drift theory

urged by the lead dissent would involve an additional layer of complication—

the launching of an unprecedented second body of substantive federal

constitutional law.

Of course, if text and original understanding compel complexity, then

complexity we shall give. But all things equal, we should endeavor to make

the law simpler, not more byzantine.

Perhaps the Supreme Court will someday switch gears and embrace

the dissent’s view that due process under the Fifth Amendment is indeed

different from due process under the Fourteenth Amendment. Perhaps the

Court will one day hold that fidelity to text and original public meaning

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necessitates the complexity of developing two distinct bodies of federal

constitutional rights—one against the feds and one against the states.

But until then, I will stick with the simplicity of the approach adopted

by the majority of my colleagues—not to mention all of the circuits that have

previously addressed the issue. I concur.

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Jennifer Walker Elrod, Circuit Judge, joined by Graves,

Higginson, Willett, and Oldham, Circuit Judges, dissenting:*

The majority today holds that the Fifth Amendment’s Due Process

Clause “immunizes” from suit in federal court a multinational corporation

with extensive business dealings in the United States and which litigates here

frequently as a plaintiff. Defendant–Appellee Nippon Yusen Kabushiki

Kaisha (“NYK”), an international shipping conglomerate, calls regularly on

American ports, operates numerous shipping terminals here, and reaps

hundreds of millions of dollars in annual revenue in so doing. In the course

of its substantial business here, NYK has invoked the power of our federal

courts to protect its rights as a plaintiff over seventy-five times. But today, the

en banc court holds that it would “offend ‘traditional notions of fair play and

substantial justice’” for injured United States servicemen and bereaved

military families to sue NYK in United States federal court.

Today’s result is as needless as it is confounding: The majority

opinion fails to prove—as a matter of the Fifth Amendment’s text, history,

and structure—the existence of a principled limit on Congress’s ability to

authorize federal courts’ personal jurisdiction over a foreign defendant.

Relying entirely on inapposite Fourteenth Amendment precedent, the

majority opinion arrives at a conclusion that will nullify Federal Rule of Civil

Procedure 4(k)(2) in most of its applications, crush the chances of American

terror victims seeking recovery in federal court, and, quite anomalously,

afford foreign civil defendants greater due process protection than foreign

criminal defendants.

*

Judge Higginson joins Part VI of this opinion. Judge Oldham joins Parts II.B and

VI of this opinion.

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Because the Fifth Amendment’s Due Process Clause does not shield

NYK from suit in United States federal court, I would hold that the district

court has personal jurisdiction in this case. I respectfully dissent.

I.

The ACX Crystal, a foreign cargo ship, crashed into the U.S.S.

Fitzgerald, a U.S. Navy destroyer, in Japanese waters. Seven sailors were

killed. Forty were injured. Seeking damages under admiralty law and the

Death on the High Seas Act, the bereaved and injured sued NYK, the foreign

shipping company that chartered the vessel, in federal court.

In both cases consolidated before us on appeal, NYK sought and the

district court granted dismissal for lack of personal jurisdiction. The injured

Navy sailors and bereaved families appealed. They argued that the Fifth

rather than Fourteenth Amendment governed the extent of federal courts’

personal jurisdiction over foreign defendants pursuant to Federal Rule of

Civil Procedure 4(k)(2). And the Supreme Court’s Fourteenth Amendment

personal jurisdiction precedents, they argued cogently, neither bind us nor

should be imported into the Fifth Amendment context.

Bound by a prior panel opinion, Patterson v. Aker Solutions, Inc., 826

F.3d 231 (5th Cir. 2016), this court affirmed, in keeping with the rule of

orderliness. Douglass v. Nippon Yusen Kabushiki Kaisha, 996 F.3d 289, 297–

300 (5th Cir. 2021). Without discussion of the relevant differences between

the Constitution’s due process clauses, Patterson had applied recent Supreme

Court precedents from the Fourteenth Amendment context to a Fifth

Amendment case. Patterson, 826 F.3d at 234. The panel in this case noted

that it was constrained to do the same. But it added that, absent Patterson,

plaintiffs–appellants’ position was “persuasive,” and indeed, “ha[d] merit.”

Douglass, 996 F.3d at 293–97.

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Two panel members specially concurred. Id. at 300–02 (Elrod, J.,

joined by Willett, J., specially concurring). The concurrence “agree[d] with

the majority opinion that the case would be decided differently if we were not

bound by Patterson,” and called all hands on deck to reevaluate our

precedent. Id. Several important considerations counseled in favor of

“apply[ing] a jurisdictional framework that distinguishes between Fifth

Amendment and Fourteenth Amendment due process standards.” Id. at

301. For one thing, “the federalism concerns that animate the Supreme

Court’s jurisprudence on the jurisdictional limitations of the Fourteenth

Amendment’s Due Process Clause are irrelevant in the Fifth Amendment

context.” Id. We further warned against “imposing restraints on federal

courts’ exercise of personal jurisdiction (and . . . Congress’s ability to

authorize jurisdiction by statute) beyond what the Constitution requires.”

Id. With these concerns in mind, we invited the court to take a different tack

en banc.

The full court accepted our invitation to reconsider the propriety of

applying the Supreme Court’s Fourteenth Amendment precedents in the

Fifth Amendment context. But today the majority opinion declines to chart

a new course, leaving our precedent at sea and the plaintiffs high and dry.

II.

What does the Due Process Clause of the Fifth Amendment have to

say about personal jurisdiction?

Our circuit’s precedents are awash with confusion: On the one hand,

we have made clear that the Fifth Amendment—and not the Fourteenth

Amendment—governs due process challenges to federal courts’ exercise of

jurisdiction over foreign defendants pursuant to Rule 4(k)(2). See, e.g.,

Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 420 (5th

Cir. 2001) (“The due process required in federal cases governed by Rule

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4(k)(2) is measured with reference to the Fifth Amendment, rather than the

Fourteenth Amendment.”). On the other hand, our Rule 4(k)(2) personal

jurisdiction cases have generally tracked Supreme Court case law from the

Fourteenth Amendment context. See, e.g., Adams v. Unione Mediterranea Di

Sicurta, 364 F.3d 646, 652 (5th Cir. 2004) (citing Fourteenth Amendment

precedent including Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

U.S. 408 (1984), and World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286

(1980)); Patterson, 826 F.3d at 234 (applying Daimler AG v. Bauman, 571 U.S.

117 (2014)).

Left entirely unexplained is why we have silently imported Fourteenth

Amendment jurisprudence into our Fifth Amendment cases. We have

assumed, without argument, that the Fifth and Fourteenth Amendment Due

Process Clauses operate in exactly the same manner vis-à-vis personal

jurisdiction. See, e.g., Patterson, 826 F.3d at 234 (providing no explanation

for the case’s application of the latest Fourteenth Amendment precedents

from the Supreme Court in ruling on a Fifth Amendment question); World

Tanker Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d 717, 723–24 (5th Cir.

1996) (applying, without explanation, the “now familiar [Fourteenth

Amendment] minimum contacts analysis” in a Rule 4(k)(2) personal

jurisdiction case, without even mentioning the Fifth Amendment once). But

this unspoken assumption is unsound. The Fifth Amendment does not

merely carry Fourteenth Amendment ballast. It has its own text, history, and

structural implications. Its Due Process Clause need not parrot what the

Supreme Court has said about the Fourteenth’s.

Perhaps our court has considered the relationship between the Fifth

and Fourteenth Amendment Due Process Clauses too obvious to require

argument. The majority opinion implies as much with its concluding

quotation from Justice Frankfurter’s solo concurrence in Malinski v. New

York, 324 U.S. 401 (1945): “To suppose that ‘due process of law’ meant one

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thing in the Fifth Amendment and another in the Fourteenth is too frivolous

to require elaborate rejection.” Id. at 415 (Frankfurter, J., concurring); ante

at 27. A six-justice majority of the Supreme Court, however, has taken a

different view, writing: “[A]s the[] [Fifth and Fourteenth Amendments]

were ingrafted upon the Constitution at different times and in widely

different circumstances of our national life, it may be that questions may arise

in which different constructions and applications of their provisions may be

proper.” French v. Barber Asphalt Pav. Co., 181 U.S. 324, 328 (1901);1 see also

Wight v. Davidson, 181 U.S. 371, 384 (1901) (“[I]t by no means necessarily

follows that a long and consistent construction put upon the 5th Amendment

[Due Process Clause] . . . is to be deemed overruled by a decision concerning

the operation of the 14th Amendment as controlling state legislation.”);

Carroll v. Greenwich Ins. Co. of N.Y., 199 U.S. 401, 410 (1905) (Holmes, J.)

(refusing to “affirm that in no instance could a distinction [between the

amendments] be taken”).

The relationship between the amendments’ Due Process Clauses and

the limits of federal courts’ personal jurisdiction clearly merits “considerable

elaboration.” Ante at 27. Far from frivolous, this thorny topic has launched

more than a few law review articles.2 Indeed, the latest originalist scholarship

strongly suggests that “‘due process of law’ has undergone linguistic drift.”

Max Crema & Lawrence B. Solum, The Original Meaning of “Due Process of

1

Contra French, 181 U.S. at 355 (Harlan, J., dissenting) (“[D]ue process of law

cannot mean one thing under the 5th Amendment and another thing under the 14th

Amendment, the words used being the same in each amendment.”).

2

For just a small sampling, see generally, e.g., Stephen E. Sachs, The Unlimited

Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020); Jonathan Remy Nash,

National Personal Jurisdiction, 68 Emory L.J. 509 (2019); Wendy Perdue, Aliens, the

Internet, and “Purposeful Availment”: A Reassessment of Fifth Amendment Limits on Personal

Jurisdiction, 98 Nw. U. L. Rev. 455 (2004); see also Stephen E. Sachs, Pennoyer Was Right,

95 Tex. L. Rev. 1249 (2017).

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Law” in the Fifth Amendment, 108 Va. L. Rev. 447, 453 (2022). That is, “its

meaning has changed since the First Congress proposed [the Fifth

Amendment] for ratification” in 1789, and before the 39th Congress

proposed the Fourteenth Amendment in 1866. Id. at 453, 461–524

(examining a wide array of primary sources and conducting rigorous

historical and corpus-linguistics analysis). Thus, it is quite reasonable to

think that the original public meaning of the Fifth Amendment’s Due Process

Clause diverges from the Fourteenth Amendment’s as it bears upon personal

jurisdiction—particularly given the interstate-federalism principles baked

into the Fourteenth Amendment.3

The Supreme Court itself has specifically flagged and repeatedly

reserved the question before us for another day. See, e.g., Bristol-Myers Squibb

Co. v. Sup. Ct. of Cal., S.F. Cnty., 137 S. Ct. 1773, 1783–84 (2017) (“[S]ince

our decision concerns the due process limits on the exercise of specific

jurisdiction by a State, we leave open the question whether the Fifth

Amendment imposes the same restrictions on the exercise of personal

3

The concurring opinion readily acknowledges the theoretical possibility of

linguistic drift over time. Ante at 28 (Ho, J., concurring). Although my concurring

colleague comes to a different conclusion, he recognizes that it is “fair enough, as an

intellectual matter” to account for linguistic drift in discerning constitutional provisions’

original public meanings. Id. at 29. Our disagreement flows not from our judicial

philosophies but from our divergent good-faith readings of Supreme Court precedent. See,

e.g., infra n.4.

Relatedly, the concurring opinion expresses an additional concern that this theory

of linguistic drift would introduce “an additional layer of complication” in federal

constitutional law—and “all things equal, we should endeavor to make the law simpler, not

more byzantine.” Ante at 37 (Ho, J., concurring) (emphasis added). We ought not opt for

Occam over originalism. The concurring opinion agrees. Id. (“Of course, if text and

original understanding compel complexity, then complexity we shall give.”). But ceteris

paribus, simplicity would weigh in favor of fewer limits on personal jurisdiction, not more.

And that simpler result aligns with the original meaning of the Fifth Amendment’s Due

Process Clause. See infra n.35.

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jurisdiction by a federal court.”); J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S.

873, 885 (2011) (plurality op.) (noting that it was unnecessary “to address . . .

any constitutional concerns that might be attendant” to more expansive

federal court exercises of personal jurisdiction over foreign defendants); post

at 96 (Higginson, J., dissenting).4

4

See also, e.g., Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 102

n.5 (1987) (stating that the Court had no occasion to address the Fifth Amendment’s

applicability to personal jurisdiction); Asahi Metal Indus. Co. v. Superior Ct. of Cal., Solano

Cnty., 480 U.S. 102, 113 n.* (1987) (same).

In the face of the Supreme Court’s repeated reservation of this question for a future

case, the concurring opinion claims that the Court has already answered it. Ante at 29–31

(Ho, J., concurring). It has not.

The concurrence first relies on the Court’s statements about incorporation

doctrine. The argument seems to go like this: (A) the Supreme Court has held that

“incorporated provisions of the Bill of Rights bear the same content when asserted against

States as they do when asserted against the federal government,” id. at 31 (quoting Ramos

v. Louisiana, 140 S. Ct. 1390, 1397 (2020) (emphasis omitted)); (B) the Fourteenth

Amendment’s Due Process Clause incorporates the Fifth Amendment’s Due Process

Clause against the states; thus, the concurrence concludes, (C) any Fifth Amendment

rights vis-à-vis personal jurisdiction must “bear the same content” as those under the

Fourteenth Amendment’s Due Process Clause, id. at 29–31.

There are at least two problems with this argument. First, it turns incorporation

doctrine upside-down. This case is actually about reverse incorporation—that is, reading

(newer) Fourteenth Amendment jurisprudence into the (older) Fifth Amendment Due

Process Clause, rather than vice versa. And none of the concurrence’s plain-vanilla

incorporation cases suggest we must—or even should—transplant the Supreme Court’s

personal jurisdiction doctrine from the Fourteenth Amendment into the Fifth

Amendment. Second, it is hardly obvious that the Fifth Amendment’s Due Process Clause

is “just like” the Second Amendment or any other provision in the Bill of Rights vis-à-vis

incorporation. Id. at 30. With due process, the Amenders did something special: they gave

the Fourteenth Amendment its own Due Process Clause. So, the Fifth Amendment’s Due

Process Clause never needed to be “incorporated” through the Fourteenth Amendment’s

Due Process Clause. The former never needed to pass through the latter’s lens to be

refracted against the states. The Fourteenth Amendment’s Due Process Clause already

applied to the states directly. For that reason, it does not follow that the scope of the rights

protected by the two clauses must bear the same content. Incidentally, this also explains

why linguistic drift is relevant only to the Fifth Amendment context—and thus why we

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In my view, it is precisely our duty as an inferior court to percolate the

arguments raised by this novel constitutional issue for eventual Supreme

Court review. Cf. Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 600

(2020) (Gorsuch, J., concurring in grant of stay) (noting that the percolation

“process that permits the airing of competing views . . . aids this Court’s own

decisionmaking process”); Box v. Planned Parenthood of Ind. & Ky., Inc., 139

S. Ct. 1780, 1784 (2019) (Thomas, J., concurring) (“[F]urther percolation

may assist our review of [an] issue of first impression . . . .”). We are asked

in this case to interpret the Fifth Amendment’s Due Process Clause with

respect to federal court personal jurisdiction—a question of first impression

that the Supreme Court has repeatedly declined to answer. And when we are

called to interpret a constitutional provision without on-point Supreme

Court guidance, we should look first to the Constitution’s text, history, and

structure before we borrow freely from adjacent Supreme Court

jurisprudence.5

would not “apply a different body of First Amendment law, Second Amendment law, and

so on, to the states as opposed to the federal government.” See id. at 33.

In support of its view, the concurring opinion also points to Gonzales v. Carhart,

550 U.S. 124 (2007), where the Court upheld a federal-law abortion restriction without

considering whether the Fifth Amendment’s Due Process Clause creates a different

framework than the Fourteenth Amendment’s when it comes to abortion jurisprudence.

See ante at 31 (Ho, J., concurring). Carhart is wholly inapposite. No scholar, litigant, or

jurist had offered any plausible reason to think that the original public meaning of the Fifth

and Fourteenth Amendments differed as to the permissibility of abortion restrictions. Here

by contrast, as multiple scholars have explained in detail, the Fifth and Fourteenth

Amendments had distinct original understandings when it came to the jurisdictional

restrictions they imposed on federal and state courts, respectively. See, e.g., Sachs,

Unlimited Jurisdiction, supra, at 1708–09, 1710–27. The non-discussion of an irrelevant

question in an unrelated case does not prevent us from reaching the right answer to a

constitutional question that the Supreme Court has expressly left open.

5

Cf. Antonin Scalia, Common Law Courts in a Civil-Law System in A Matter of

Interpretation 39 (1997) (disapprovingly describing constitutional analysis that takes as its

“starting point” Supreme Court case law and thus removes from focus the Constitution’s

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We are bound to apply controlling law as it stands. In this case, there

is no controlling Supreme Court precedent. What controls is the Fifth

Amendment Due Process Clause. If the en banc majority is convinced that

the Fifth Amendment Due Process Clause, as originally understood, imposes

the same set of jurisdictional rules that the Supreme Court has decreed

pursuant to the Fourteenth Amendment, then it bears the burden of proving

that with reference to the Fifth Amendment’s text, history, and structure.

The majority opinion has made no such effort. See ante at 7 n.8. It fails to

meet its burden from the very get-go.6 Indeed, the majority opinion could

“original text and understanding”); Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S.

Ct. 1017, 1036 n.2 (2021) (Gorsuch, J., concurring in the judgment) (indicating that “the

right question” to be asking in Fourteenth Amendment personal jurisdiction context is

“what the Constitution as originally understood requires”).

Both parties in this case ask us to take as our “starting point” Supreme Court

personal jurisdiction case law from the Fourteenth Amendment context. Appellees

vigorously contend that Fourteenth Amendment personal jurisdiction case law,

particularly Daimler, 571 U.S. 117, controls our interpretation of the Fifth Amendment’s

Due Process Clause in this case. Meanwhile, appellants argue that Fourteenth Amendment

case law does not bind us in the Fifth Amendment context; but they nonetheless ask us to

kick off our analysis with International Shoe Co. v. Washington, 326 U.S. 310 (1945), while

refraining from relying on its progeny. I disagree with both approaches because both start

not with the Fifth Amendment but with inapplicable Fourteenth Amendment case law.

Thus, I agree with the majority opinion that we ought to “reject the plaintiffs’

invitation to craft an atextual, novel, and unprecedented Fifth Amendment personal

jurisdiction standard” that is not founded upon the amendment’s original understanding.

Ante at 27. But, as I explain in this dissent, we also ought to reject NYK’s invitation to

calcify our current Fifth Amendment precedents, which erroneously import Fourteenth

Amendment Supreme Court jurisprudence.

6

The majority opinion’s footnoted response to this dissent is unresponsive on this

score: Lacking Supreme Court case law restricting federal courts’ exercise of personal

jurisdiction under the Fifth Amendment, NYK must convince us, as a matter of text,

history, and structure, that the Fifth Amendment’s Due Process Clause merely mimes the

Fourteenth’s as to personal jurisdiction. But NYK has made no such argument, and nor

has the majority opinion. See ante at 7 n.8.

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In fact, the majority opinion expressly refuses to engage with the contrary

arguments presented in this dissent, declining to address anything but “the exact arguments

raised by the plaintiffs.” Id. (emphasis added). Respectfully, I do not think our approach

should be so blinkered. Of course we take cases as they are presented to us, but that does

not mean that we must parrot parties’ “exact” views in our opinions. Our duty is to resolve

the appeal correctly and offer our independent explanation of the bases for our decision. See

United States v. Brace, 145 F.3d 247, 267 (5th Cir. 1998) (en banc) (DeMoss, J.,

dissenting) (“To refrain from independent analysis is to abdicate the essential function of

judging. . . . Just as we do not abdicate our judicial responsibilities and blindly accept the

parties’ stipulations, neither do we don blinders and confine our consideration to those

legal doctrines that are presented by the parties.”).

More to the point, however, plaintiffs-appellants themselves raised all the

arguments necessary to succeed here on appeal: Although neither they nor their amici

ground their proposed ‘national contacts’ test in the original understanding of the Fifth

Amendment, they did argue—quite correctly—that Fifth Amendment personal

jurisdiction standards are not dictated by Fourteenth Amendment jurisprudence. See

Appellants’ En Banc Br. 18–20, 18 n.5 (citing, inter alia, Sachs, Unlimited Jurisdiction,

supra, and early nineteenth-century cases Picquet v. Swan, 19 F. Cas. 609 (C.C.D. Mass.

1828) and Toland v. Sprague, 37 U.S. 300 (13 Pet.), 327 (1838)); En Banc Oral Argument at

25:20–25:57 (noting but not relying upon originalist scholarship to fashion a middle-ground

‘national contacts’ test); id. at 58:12–58:53 (“It’s also important to understand that there

is considerable originalist scholarship that the Fifth Amendment does not address personal

jurisdiction. I mentioned the Stephen Sachs article, he’s actually written several articles to

that effect.”).

That being the case, the onus was on NYK to persuade us that we should continue

to use Fourteenth Amendment jurisprudence to cast light on the Fifth Amendment and

restrict the constitutional applicability of Rule 4(k)(2). Cf. Baldwin v. Missouri, 281 U.S.

586, 599 (1930) (“As this Court has often held, the burden rests upon him who assails a

statute to establish its unconstitutionality.”); Brown v. Maryland, 25 U.S. (12 Wheat.) 419,

436–37 (1827) (“It has been truly said, that the presumption is in favour of every legislative

act, and that the whole burthen of proof lies on him who denies its constitutionality.”). In

my view, NYK has failed to do so. And, without a reason to affirm the district court’s

restrictive view of its ability to exercise personal jurisdiction under the Fifth Amendment’s

Due Process Clause, we should overrule our misguided precedents in this area and reverse

the district court’s dismissal for lack of jurisdiction.

The majority opinion further suggests that this dissent fails on its own terms

because Congress has not acted to extend federal court jurisdiction. See ante at 7 n.8; infra

section II.B. Not so. Rule 4(k)(2), promulgated and enacted pursuant to the Rules

Enabling Act with Congress’s imprimatur, plainly supports personal jurisdiction here. See

Fed. R. Civ. P. 4(k)(2); 28 U.S.C. §§ 2071–2077; id. §§ 2074, 2075 (providing Congress

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not meet its burden if it tried. The text, history, and structural implications

of the Fifth Amendment Due Process Clause suggest that its original public

meaning imposed few (if any) barriers to federal court personal jurisdiction.

A.

First, the text. The Fifth Amendment Due Process Clause provides:

“No person shall be . . . deprived of life, liberty, or property, without due

process of law[.]” U.S. Const. amend. V. This provision, Justice Joseph

Story explained in 1833, draws upon “the language of magna charta, ‘nec

super eum ibimus, nec super eum mittimus, nisi per legale judicium parium

suorum, vel per legem terrae,’ neither will we pass upon him, or condemn him,

but by the lawful judgment of his peers, or by the law of the land.”7 3 Joseph

Story, Commentaries on the Constitution of the United States § 1783

(Hillard, Gray, & Co. 1833). Citing the renowned seventeenth century

English jurist Lord Coke, Alexander Hamilton wrote in 1784 that “[i]f we

enquire what is meant by the law of the land, the best commentators will tell

us, that it means due process of law, that is, by indictment or presentment of good

and lawful men, and trial and conviction in consequence.” Alexander

Hamilton, A Letter from Phocion to the Considerate Citizens of New York (Jan.

1784), reprinted in 3 The Papers of Alexander Hamilton 485, 485–86 (Harold

C. Syrett & Jacob E. Cooke eds., 1962) (emphasis in original) (referring to

with a statutory window of at least seven months to reject, modify, or defer any proposed

rule, after which period proposed rules take effect with Congressional approval).

7

Up until about a century ago, the predominant spelling of the Great Charter was

“Magna Charta,” pronounced the same as it is today (with a hard -k- sound). See Bryan A.

Garner, A Magna Carta Style Guide, 101 A.B.A. J. 26, 26 (2015). In an “astonishingly swift

reversal of linguistic fortune,” English speakers in the twentieth century began spelling it

“Magna Carta,” at least in part because of pervasive mispronunciation with a -ch-

sound. See id.

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2 Edward Coke, Institutes of the Lawes of England 50 (1642)).8 Indeed, the

relationship between “law of the land” and “due process of law” antedates

Lord Coke’s magisterial interpretation of Magna Carta by nearly three

centuries.9

Over the course of almost six centuries between the signing of Magna

Carta in 1215 and the American Founding in the late eighteenth century, the

related phrases “law of the land” and “due process of law” came to signify

the procedural protections of the English positive law.10 Sir William

8

Justice Story also cited Lord Coke in making the broader assertion that “per legem

terrae (by the law of the land) mean[s] by due process of law.” See Story, supra, at § 1783;

Crema & Solum, supra, at 516–24 (arguing that Justice Story may have misread Lord Coke

in conflating the broader legal expression “law of the land” with its narrower subset “due

process of law”). Mid-nineteenth century cases began to adopt Justice Story’s broad

equation of “law of the land” with “due process of law.” See, e.g., Den ex dem. Murray v.

Hoboken Land & Imp. Co., 59 U.S. (18 How.) 272, 276 (1855) (“The words, ‘due process of

law,’ were undoubtedly intended to convey the same meaning as the words, ‘by the law of

the land,’ in Magna Charta.” (citing, inter alia, Lord Coke)). But, as Hamilton’s “Letter

from Phocion” illustrates, the Founding generation understood “law of the land” to

encompass both “due process of law” (i.e., indictment, presentment, service of the proper

writ) and civil and criminal procedure more generally (i.e., motions practice, trial). See

Crema & Solum, supra, at 504–06. Thus, “due process of law,” as originally understood

at the time that the Fifth Amendment was proposed and ratified, likely had a narrower

meaning than it came to have by the time the Fourteenth Amendment was proposed and

ratified. See also infra section II.C.1.

9

See 28 Edw. 3, c. 3 (1354) (Eng.) (implementing Magna Carta’s thirty-ninth

chapter and using “due Process of the Law” (albeit in law French) in place of “law of the

land”). Note that Magna Carta’s chapter divisions were only standardized in the

eighteenth century by Sir William Blackstone. On Blackstone’s numbering system, the ‘per

legem terrae’ chapter is thirty-nine in the original 1215 Magna Carta, and twenty-nine in the

1225 issue, which is also frequently cited.

10

See Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale

L.J. 408, 428–34 (2010) (“[A]n eighteenth-century reader well-versed in English law

would likely have understood both the law of the land and due process of law to require

only compliance with duly enacted positive law . . . .”); Murray’s Lessee v. Hoboken Land &

Improvement Co., 59 U.S. (18 How.) 272, 276 (1856) (“‘[D]ue process of law’ generally

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Blackstone, for instance—another renowned English jurist whose work, like

Coke’s, deeply influenced American legal thought—wrote of “the

affirmative acts of parliament wherein justice is directed to be done according

to the law of the land,” and noted that the law of the land “depends not upon

the arbitrary will of any judge; but is permanent, fixed, and unchangeable,

unless by authority of parliament.” 1 William Blackstone, Commentaries *141–

42 (emphasis added).

An early eighteenth-century case, Regina v. Paty (1704) 92 Eng. Rep.

232 (Q.B.), exemplified the prevailing conception of due process in the years

leading up to the American Founding. Petitioners in that case sought habeas

corpus, having been jailed on a warrant issued by the speaker of the House of

Commons for allegedly breaching parliamentary privilege. Id. at 232–33.

They argued that their incarceration violated Magna Carta’s assurance that

“no man ought to be taken or imprisoned but by the law of the land.” Id. at

233 (reporting petitioners’ objections). Three of the four justices hearing the

case denied the petitioners’ claim. Id. at 232–33 (Gould, J.), 233–35 (Powys,

J.), 235–36 (Powell, J.). As reported, Justice Powys addressed petitioners’

argument as follows:

[T]o this I answer, that lex terrae is not confined to the common

law, but takes in all the other laws, which are in force in this

realm; as the civil and canon law, &c. and among the rest, the

Lex Parliamenti. By the 28 Ed. 3, c. 3, there the words lex terrae,

which are used in Mag. Char. are explained by the words, due

process of law; and the meaning of the statute is, that all

commitments must be by a legal authority. And the law of

Parliament is as much a law as any; nay, if there be any

superiority, this is a superior law.

implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial

according to some settled course of judicial proceedings . . . .”).

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Id. at 234 (emphasis added). The sole dissenting justice, Chief Justice Holt,

did not disagree with this premise; he disagreed only as to the legal status of

the House of Commons warrant in question. Id. at 236–37 (Holt, C.J.,

dissenting). Thus, the Queen’s Bench was unanimous as to this central

point: Magna Carta’s guarantee of due process did not extrinsically constrain

the legislative process. It required only that legal deprivation be preceded by

lawful process, in keeping with the common law or duly enacted legislation.11

Early American colonists quickly transplanted this deeply rooted

English legal tradition in their own governing documents. Using variations

on the longstanding phrases “law of the land” and “due process of law,” the

colonists brought with them the legal soil of their forebears in their first

charters and declarations of rights.12 The same language carried over into

11

Some fifty years earlier, in another English case, a habeas corpus petitioner

similarly invoked the “29th chapter of Magna Carta” and its statutory complement (42

Edw. 3, c. 3) against the Parliamentary warrant on which he had been arrested, asserting

that he had “been proceeded against not according to the law of the land.” Case of Captain

Streater, 5 How. St. Tr. 366, 374–86 (1653); see also supra n.9 (explaining Magna Carta’s

chapter-numbering conventions). The judge in that case was perhaps even less impressed

with the argument than the Queen’s Bench in Paty’s Case: “[Petitioner’s counsel] says,

The parliament hath not the power to alter the laws. Why, they have the legislative power,

and may alter and order in such sort as they please; they may daily. . . . It is strange a

counsellor should say this.” Captain Streater, 5 How. St. Tr. at 386. “[I]n all justice, an

inferior court cannot controul what the Parliament does. . . . We must submit to the

legislative power . . . .” Id.

12

See, e.g., The New York Charter of Liberties and Privileges ¶ 13 (1683) (“Noe

freeman shall be taken and imprisoned or be disseized of his Freehold or Libertye or Free

Customes or be outlawed or Exiled or any other wayes destroyed nor shall be passed upon

adjudged or condemned But by the Lawfull Judgment of his peers and by the Law of this

province.” (emphasis added)); An Act Declaring What Are the Rights and Priviledges, of

His Majesty’s Subjects, Inhabiting Within this Province of East New Jersey (1698) (using

both “laws of this Province” and “due course of law”).

Quite recently, two scholars have suggested that three interrelated legal phrases

stemming from Magna Carta and six subsequent Edwardian statutes—“law of the land,”

“course of law,” and “due process of law”—were in use during the Founding era and

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state constitutions,13 the Northwest Ordinance,14 and eventually, the Fifth

Amendment to the federal Constitution.15

generally understood to mean somewhat different things: “law of the land” referred most

broadly to the English positive law; “course of law” meant legal procedure; and “due

process of law” referred rather narrowly to the appropriate “process”—that is, “‘writs or

precepts that go forth’ from a court” by which “[g]overnment officials . . . issue orders,

impose obligations, or grant rights.” See Crema & Solum, supra, at 461–525; id. at 465

(quoting Process, 2 Timothy Cunningham, A New and Complete Law-Dictionary (London,

1765)).

13

See, e.g., Md. Const. of 1776, Declaration and Charter of Rights, art. 21 (“That

no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or

privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty,

or property, but by the lawful judgment of his peers, or by the law of the land.”); N.Y.

Const. of 1777, art. XIII (“[N]o member of this state shall be disfranchised, or deprived of

any the rights or privileges secured to the subjects of this State by this constitution, unless

by the law of the land, or the judgment of his peers.”). Some states tailored these

provisions more narrowly to the criminal context, e.g., Pa. Const. of 1776, Declaration of

Rights, art. IX (“That in all prosecutions for criminal offences, a man . . . [cannot] be justly

deprived of his liberty except by the laws of the land, or the judgment of his peers.”), while

others phrased the provisions to provide protections for criminal defendants but did not

expressly cabin the scope to only criminal defendants, e.g., Mass. Const. pt. I, art. XII

(1870) (“[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property,

immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life,

liberty, or estate, but by the judgment of his peers, or the law of the land.”). See Williams,

supra, at 437–38 & nn.120–22; see also Edward S. Corwin, The Doctrine of Due Process of Law

Before the Civil War, 24 Harv. L. Rev. 366, 370–71 (1911) (arguing that “the phrase ‘law of

the land,’ which is the universal form in [early state] constitutions, [did not] import any

limitation upon legislative power”).

14

Ordinance of 1787: The Northwest Territorial Government, art. II, U.S.C. LV,

LVI (2006) (“No man shall be deprived of his liberty or property but by the judgment of

his peers, or the law of the land . . . .” (emphasis added)).

15

Notes from the constitutional convention or the ratification debates provide little

aid in understanding the Fifth Amendment’s Due Process Clause. See 1 Annals of Cong.

434 (James Madison introducing the amendment), 753–54 (debating other clauses of the

amendment, but not the due process clause). “The immediate inspiration for Madison’s

proposal was most likely Article II of the Northwest Ordinance,” which had a provision

like those adopted in state constitutions and which Congress passed a few years earlier. See

Williams, supra, at 446 n.156 (quoting Ordinance of 1787: The Northwest Territorial

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B.

In light of the text and history behind the Fifth Amendment’s Due

Process Clause, what bearing (if any) did the clause have on federal courts’

exercise of personal jurisdiction or Congress’s ability to expand it? There are

relatively few cases from our nation’s early constitutional history to serve as

waypoints on our interpretive voyage.16 In any event, “[s]howing that

Founding-era due process didn’t limit federal personal jurisdiction is an

exercise in proving a negative.” Stephen E. Sachs, The Unlimited Jurisdiction

of the Federal Courts, 106 Va. L. Rev. 1703, 1710 (2020); see also Elkins v.

United States, 364 U.S. 206, 218 (1960) (“[A]s a practical matter it is never

easy to prove a negative . . . .”). And the majority opinion points us to no

case whatsoever from our nation’s early history to carry its burden in support

of its view. Nor could it: the few relevant cases that we have compellingly

suggest that due process had precious little to do with jurisdiction.

1.

Consider Picquet v. Swan, 19 F. Cas. 609 (C.C.D. Mass. 1828) (No.

11,134). Antonio Picquet, a Frenchman, sued James Swan, an American

expatriate in Paris, in federal court. Id. at 609. Swan never appeared, so

Picquet sought a default judgment. But Justice Joseph Story, riding circuit,

Government, U.S.C. LV, LVI (2006)); see also Crema & Solum, supra, at 506–07 (noting

that New York’s 1788 ratification letter—the only one to request a “due process of law”

guarantee—was likely “the inspiration for James Madison’s decision to include the Due

Process of Law Clause”). The lack of debate during the Constitution’s framing and

ratification is likely due to the fact that ‘due process’ was well understood at the time as

having “a precise technical import” that was, well, beyond debate. See Alexander

Hamilton, New York Assembly. Remarks on an Act for Regulating Elections (Feb. 6,

1787), reprinted in 4 The Papers of Alexander Hamilton 34–37 (ed. Harold C. Syrett 1962).

16

The reason for that, in part, is strict Congressional control over venue for federal

civil suits. See, e.g., Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 79. This necessarily

limited the occasions that could give rise to jurisdictional issues.

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refused to authorize such “upon the ground[] that there ha[d] been no

sufficient service of the process.” Id. at 619. The problem, Justice Story

explained, was that Congress had not authorized extraterritorial process

clearly enough to overcome the “general principle[],” in keeping with the

“law of nations,” “that a court created within and for a particular territory is

bounded in the exercise of its power by the limits of such territory.” Id. at

611, 615.

But Congress could have done so. Indeed, Congress had expressly

authorized more expansive nationwide process in special circumstances, and

having done so, Congress itself evidently acknowledged that it legislated

against a restrictive background rule that constrained a federal court’s

process to its own particular district. Id. at 611 (noting examples). Relying

both on this “understanding of congress” and “on general principles” of

law, Justice Story repudiated a default rule that would permit “an alien, who

has never been within the United States” to be “served with a summons or

other process by any attachment of his property . . . and be bound thereby to

appear and submit to the jurisdiction of [an American federal] court.” Id. at

615.

If there were a moment in the opinion to mention any lurking Fifth

Amendment due process issue, this would have been it.17 Had Justice Story

thought that a constitutional provision—not merely a defeasible background

principle of the law of nations—demanded narrow statutory construction, “it

would have been the simplest thing for him to say so.” See United States v.

Zubaydah, 142 S. Ct. 959, 992 (2022) (Gorsuch, J., dissenting). “Not only

do universal principles of law preclude extraterritorial federal court

17

Sachs, supra, at 1716 (discussing this part of Picquet and noting that if exercising

extraterritorial jurisdiction over foreign defendants violated due process—in addition to

common-law and general principles of justice—then “now was the time to say so”).

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process,” Justice Story might very well have written, “but our own

Constitution’s Fifth Amendment prohibits it as violative of due process of

law.” He wrote no such thing, of course—and this is the dog that did not

bark.18 See id. at 992 (Gorsuch, J., dissenting) (making the same form of

argument based on the “clear implication” of judicial silence)

But Justice Story went even further. He expressly contemplated the

possibility of vast—perhaps unlimited—federal court jurisdiction, provided

that Congress clearly said so: “If congress had prescribed such a[n]

[expansive] rule, the court would certainly be bound to follow it . . . .” Id.

(emphasis added).19 Surely Justice Story would not have said that federal

courts would “certainly” be “bound” to exercise constitutionally

problematic jurisdiction merely upon Congressional say-so. To the contrary,

he would have flagged any extrinsic constitutional limits on federal court

jurisdiction that would have defeated overly expansive Congressional

authorization. After all, whenever an act of Congress and the Constitution

conflict, courts are obviously bound to obey the latter. Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803).

But again, Justice Story conspicuously said nothing of this sort. And

what he did say strongly suggests the absence of constitutional constraints on

Congress’s ability to authorize sweeping federal court jurisdiction over even

foreign parties residing abroad. In the course of addressing Piquet’s

argument that the Judiciary Act of 1789 posed no barrier to extraterritorial

18

See Sir Arthur Conan Doyle, The Adventure of Silver Blaze, Strand Mag., Dec.

1892, at 645, 656–57, 659 (mystery-solving clue was the “curious incident” of the dog that

“did nothing in the night-time”).

19

See also Piquet, 19 F. Cas. at 613 (“[I]ndependent of some positive provision to the

contrary, no judgment could be rendered in the circuit court against any person, upon whom

process could not be personally served within the district.” (emphasis added)).

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process, Justice Story observed that Picquet relied on an unspoken—and

incorrect—premise: namely, that absent affirmative statutory limitations, the

reach of federal process was unbounded. Piquet, 19 F. Cas. at 613. Justice

Story held the inverse to be true: absent affirmative authorization, the reach

of American courts’ process was limited by “general principles of law.” Id.

at 611, 615.

As Justice Story saw it, the “general principles of law” that gave rise

to the background presumption against extraterritorial process were not a

brooding omnipresence that indefeasibly tied Congress’s hands. Congress

could act to change the background rule. It just had to do so explicitly. Thus,

Justice Story wrote that although “repugnant to the general rights and

sovereignty of other nations” and not an intention to be presumed lightly

from general congressional language, “a subject of England, or France, or

Russia, having a controversy with one of our own citizens, may be summoned

from the other end of the globe to obey our process, and submit to the

judgment of our courts,” if Congress’s intent is “established by irresistible

proof.” Id. at 613. Importantly, Justice Story made no mention of Fifth

Amendment due process.

But there was a different constitutional problem with Picquet’s case.

Picquet, it turns out, had described Swan as being “of the city of Boston, in

the commonwealth of Massachusetts, one of the United States of America,

and a citizen of the said United States.” Id. at 609 (emphasis added). He did

not, however, specify that Swan was “a citizen of Massachusetts, or of any

particular state.” Id. at 616 (emphasis added). And while the Judiciary Act

of 1789 gave circuit courts jurisdiction over cases to which “an alien” like

Piquet “is a party,” 1 Stat. at 78, § 11, Article III of the Constitution “does

not extend the judicial power of the United States to [all cases in which an

alien is a party], but limits it to controversies between citizens of a state, and

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foreign citizens or subjects.” Picquet, 19 F. Cas. at 616 (paraphrasing U.S.

Const. art. III, § 2) (emphasis added).

So, Justice Story pedantically engaged in constitutional avoidance to

dodge this rigidly formalistic Article III problem. He interpreted the

Judiciary Act to mean that “if an alien is one party, a citizen of some

particular state must be the other party.” Id. at 616. Picquet’s writ

technically did not pass muster because Picquet had not (in so many words)

denominated his counterparty, Swan, a “citizen of a state”—a fact necessary

for the court to exercise diversity jurisdiction according to the letter of the

Constitution. If Justice Story was so attuned to this picayune constitutional

peccadillo, could he really have overlooked a looming Fifth Amendment due

process problem?

Justice Story’s failure to make any mention of the Fifth Amendment’s

Due Process Clause would be glaring if Justice Story believed that it

constrained courts’ exercise of personal jurisdiction. But his omission makes

perfect sense if the Clause merely required lawful process in keeping with the

common law or duly enacted legislation.

2.

Picquet’s silence as to due process is telling. And it does not stand

alone. Of the other early cases that we have, none lends support to the view

that a string of Supreme Court cases interpreting the Fourteenth

Amendment from the mid-twentieth century to the present somehow

captured the Fifth Amendment’s original public meaning. Just the opposite.

Other cases both before and after Picquet suggest—in what they do not say—

that Fifth Amendment due process had no bearing on the extent to which

Congress could authorize federal courts to issue process internationally.

A decade before Picquet, Justice Bushrod Washington (President

George Washington’s nephew) already aired much the same reasoning while

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riding circuit in Pennsylvania. In Ex parte Graham, which Justice Story cited

favorably in Picquet, Justice Washington determined that a Philadelphia

merchant was improperly arrested in Pennsylvania on the basis of a Rhode

Island circuit court order. 10 F. Cas. 911, 911, 913 (C.C.E.D. Pa. 1818) (No.

5,657). “In the exercise of a jurisdiction over persons not inhabitants of, or

found within the district where the suit is brought,” he wrote, “there are

difficulties, which, in the opinion of the court, nothing but an act of congress

can remove.” Id. at 913 (emphasis added). And furthermore, he added,

should it be the will of congress to vest in the courts of the

United States an extra-territorial jurisdiction in prize causes,

over persons and things found in a district other than that from

which the process issued, it would seem to be proper, if not

absolutely necessary, at the same time to prescribe the mode of

executing the process.

Id. Congress had the power; it simply had to exercise it. And if there were

any due process limitations on Congress’s power, Justice Washington wholly

neglected to mention them.

A decade after Picquet, the full Supreme Court endorsed Justice

Story’s circuit court opinion. Toland, 37 U.S. (13 Pet.) at 328, 330. In Toland,

Justice Barbour described “the reasoning in [Picquet], generally, as having

great force,” and announced that the Court had “arrived at the same

conclusions” as Justice Story had in Picquet. Id. at 328, 330. Toland, a

Pennsylvanian plaintiff, sued Sprague, an American denizen of Gibraltar, for

stiffing him on a shipment of tobacco and miscellaneous other goods. Id. at

302. As in Picquet, the question raised was “whether the process of foreign

attachment can be properly used by the circuit courts of the United States, in

cases where the defendant is domiciled abroad, and not found within the

district in which the process issues, so that it can be served upon him.” Id.

at 327. Hewing closely to Justice Story’s logic in Picquet, the Court held that

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Congress’s Process Acts, read in light of the Judiciary Act, had not expressly

given federal courts the authority to cause process to be personally served

upon foreign defendants abroad. Id. at 327–30. But, just as in Picquet, the

Court intimated that express, “special authority of law”—“positive

legislation”—could grant federal courts that power and thus expand their

jurisdiction. Id. at 329–30.

Foreign attachment was not invariably doomed for lack of

congressional authorization. In a couple other early nineteenth-century cases

before Picquet, Justice Washington, riding circuit in Pennsylvania, refused to

uphold challenges to foreign attachments against a Cantonese tea merchant

on claims arising out of business conducted in Canton. See Fisher v. Consequa,

9 F. Cas. 120, 121–22 (C.C.D. Pa. 1809) (No. 4,816) (finding “no ground to

dissolve [a foreign] attachment,” as authorized by a colonial Pennsylvanian

law, because that law “has received in practice a liberal construction, so as to

embrace debts contracted in foreign countries, by persons who never did

reside here, and who, of course, could not properly be said to absent

themselves; and which debts, neither by the terms of the contract, nor by the

removal of the debtor hither, could be said to be owing here”); id. at 121

(noting that the state law providing for foreign attachment was a “remedial

law” that “ought . . . to be so extended as to remove the mischief [of

absconding foreign debtors], and to advance the remedy” for the “injury of

the inhabitants of Pennsylvania”); Willings v. Consequa, 30 F. Cas. 52, 52–55

(C.C.D. Pa. 1815) (No. 17,766) (failing to mention any jurisdictional issue

with a series of suits brought by American merchants against a Cantonese

merchant on parole contracts “made at Canton” for the delivery of tea to

Amsterdam). Perhaps these cases would have come down differently in light

of Picquet and Toland. But, for our purposes, the key thing to notice is that

neither opinion so much as hints at a constitutional due process problem.

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From this brief survey of nineteenth-century case law, a couple of

things are reasonably clear: First, so long as a statute or rule provides a means

of serving process on civil defendants—even defendants halfway across the

globe—a federal court could and should exercise jurisdiction, despite

offending the law of nations. Second, so long as Congress expressly

authorized such expansive process, Fifth Amendment due process does not

impose constitutional limits on federal courts’ exercise of personal

jurisdiction. Just as Magna Carta’s per legem terrae clause did not tie

Parliament’s hands in Paty’s case, early American cases show—by what they

omit—that the Fifth Amendment’s Due Process Clause does not restrict

Congress’s ability to prescribe, by law, the extent to which federal courts may

issue process and thereby acquire personal jurisdiction over even foreign

defendants a world away.

C.

The majority opinion hopscotches right over all this history, leaping

from Runnymede in 1215 A.D. straight to Washington, D.C. in 1945. Ante at

14–15. It turns out, as we have seen, that a good bit happened in the

intervening seven centuries that is helpful to discerning what the Fifth

Amendment’s Due Process Clause, as originally understood, had to say

about personal jurisdiction. Supra sections II.A–B. But on the majority

opinion’s abridged telling of the story, “the Great Charter of individual

liberty, Magna Carta” gave rise to “due process of law,” and (seven

centuries later), International Shoe and its progeny suddenly elucidated how

due process protects individual liberty vis-à-vis personal jurisdiction.20 Ante

20

I agree, of course, with the majority opinion that ‘due process of law’ protects

individual liberty. Ante at 14–17. But so does federalism. See, e.g., Planned Parenthood Gulf

Coast, Inc. v. Phillips, 24 F.4th 442, 450 (5th Cir. 2022) (“Federalism recognizes our dual

sovereignties—the states and the federal government—and ‘secures to citizens the

liberties that derive from the diffusion of sovereign power.’” (quoting Shelby County v.

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at 14–15. As the majority opinion would have it, International Shoe et al.—an

extensive line of Fourteenth Amendment case law—apply equally to Fifth

Amendment due process, because both “Due Process Clauses use the same

language and guarantee individual liberty in the same way.” Ante at 17.

This is anachronism.21 Case law applying the Fourteenth Amendment

construes a different text directed at a different audience, and which was

written at a different time in our history and, accordingly, under different

circumstances. To imbue the older Fifth Amendment with newer glosses on

Holder, 570 U.S. 529, 543 (2013))); Williams ex rel. J.E. v. Reeves, 981 F.3d 437, 439 (5th

Cir. 2020) (Jones, J., dissenting) (“Federalism, the principle of dual sovereignties, is a

bedrock principle of our Founding and a bulwark of individual liberty because it diffuses

the exercise of power by governments.”). And so does the separation of powers. See Bond

v. United States, 564 U.S. 211, 222 (2011) (“The structural principles secured by the

separation of powers protect the individual as well.”). Indeed, our entire system of

government was designed to promote ordered liberty. Yet it is equally clear that not every

safeguard of our liberty comes in the form of an inflexible right against the state.

Federalism, for instance, protects individual liberty structurally by preventing dangerous

concentrations of power. Among its many other functions, Fifth Amendment due process

likewise protects liberty by guaranteeing that deprivations thereof only occur pursuant to

the law of the land—which includes statutes and rules that define and delimit federal

courts’ jurisdictional reach. Cf. Sachs, Pennoyer Was Right, supra, at 1314 (“[D]ue process

requires jurisdiction, full stop[] . . . . To the extent that Congress has enumerated power to

determine [federal courts’ jurisdiction], the Due Process Clauses won’t stand in the

way.”); id.at 1288 (explaining that because (1) “[d]ue process . . . forbid[s] deprivations of

liberty or property without the lawful judgment of a properly authorized court,” and (2) “a

court lacking in personal jurisdiction isn’t properly authorized [and] can’t issue a lawful

judgment,” therefore, (3) an unlawful judgment from a court lacking personal jurisdiction

constitutes a due process violation).

21

It also begs the question. The Fifth Amendment only protects individual liberty

in the same way as the Fourteenth Amendment if we apply the same precedents from the

Fourteenth Amendment context in the Fifth Amendment context—which is precisely the

conclusion that the statement is supposed to explain. See ante at 17 (“Because the Due

Process Clauses use the same language and guarantee individual liberty in the same way, it

makes sense that the standards developed in the Fourteenth Amendment context must

govern under the Fifth Amendment.”).

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the more recent Fourteenth Amendment is to put new wine in an old

wineskin.22

1.

The Fourteenth Amendment was drafted more than seventy-five

years after Fifth Amendment, and under quite different historical

circumstances. As already discussed, recent originalist scholarship indicates

that the phrase “due process of law” underwent substantial linguistic drift

over the course of the nineteenth century. See Crema & Solum, supra, at

509–25; supra section II.A & n.8. In 1791, the phrase bore a rather technical

legal meaning: namely, service of the proper writ—what we call “service of

process” today. But by 1868, “due process of law” had come to refer to

procedural fairness more generally. For this reason, Supreme Court

precedents interpreting “due process of law” as it was used in 1868 are not

dispositive of the phrase’s usage in the late eighteenth century.

Still, even if we were to assume arguendo that the Fifth and Fourteenth

Amendment Due Process Clauses share identical semantic content, there

remain deeper structural state–federal differences that significantly affect the

clauses’ legal effect.23 International Shoe and its progeny are concerned not

only with due process generally, but also with principles of interstate

22

See Crema & Solum, supra, at 528 (stating that it is most consistent with public

meaning originalism to hold the view that “the meaning of the two Clauses are independent

of one another” and rejecting the reverse-incorporation view that “[r]atification of the

Fourteenth Amendment implicitly amended the earlier Fifth Amendment Due Process of

Law Clause”).

23

Cf. Xitronix Corp. v. KLA-Tencor Corp., 916 F.3d 429, 442–43 (5th Cir. 2019)

(Higginson, J.) (observing that although “the Supreme Court prefers to construe like text

alike[,] [i]t has refused to give identical terms the same meaning . . . when contexts and

considerations differ,” and holding that the lack of “federalism concerns” present in a

different context justified a different interpretation of the same statutory language).

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federalism. And principles of interstate federalism are irrelevant in the Fifth

Amendment context of federal court personal jurisdiction.24

Federalism concerns animate the Supreme Court’s jurisprudence on

the jurisdictional limitations of the Fourteenth Amendment’s Due Process

Clause. See Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017,

1030 (2021) (noting that “principles of ‘interstate federalism’” are central

to the Court’s analysis of Fourteenth Amendment due process limitations on

personal jurisdiction (quoting World-Wide Volkswagen, 444 U.S. at 293)).25

To prevent competing assertions of state court jurisdiction within the federal

system, the Supreme Court has fashioned rules under the Fourteenth

Amendment to limit state courts to the exercise of general personal

jurisdiction over corporate defendants that are incorporated in the state,

house their “nerve center” there, or are otherwise “essentially at home” in

the state.

These federalism concerns are entirely absent in the Fifth

Amendment due process context.26 Since federal law applies uniformly and

24

The textual differences between the amendments are also reflective of these

deeper structural state–federal differences between the clauses’ respective applications.

Contrast U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person of life,

liberty, or property, without due process of law[.]” (emphasis added)), with U.S. Const.

amend. V (“No person shall be . . . deprived of life, liberty, or property, without due

process of law[.]”).

25

See also, e.g., Bristol-Myers, 137 S. Ct. at 1780 (“[R]estrictions on personal

jurisdiction ‘are more than a guarantee of immunity from inconvenient or distant litigation.

They are a consequence of territorial limitations on the power of the respective States.’”

(quoting Hanson v. Denckla, 357 U.S. 235, 251 (1958))); id. at 1788 (Sotomayor, J.,

dissenting) (“The majority’s animating concern, in the end, appears to be federalism

. . . .”).

26

The United States, intervening in a case pending in the Second Circuit, very

recently put it this way:

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what matters, ultimately, is the sovereignty of the United States, federal

courts’ personal jurisdiction can properly be much more expansive. As the

United States Solicitor General recently argued before the Supreme Court,

“the United States’ constitutional powers and special competence in matters

of foreign affairs and international commerce, in contrast to the limited and

geographically cabined sovereignty of each of the several States, would

permit the exercise of federal judicial power in ways that have no analogue at

the state level.” Brief of the United States as Amicus Curiae at 32, Ford Motor

Co., 141 S. Ct. 1017 (Nos. 19-368, 19-369), 2020 WL 1478612.

This all makes sense as a matter of first principles. Personal

jurisdiction is anchored to the concept of sovereignty. Cf. McIntyre, 564 U.S.

at 883–84 (“[J]urisdiction is in the first instance a question of authority rather

than fairness[.]”). A court has personal jurisdiction over a defendant when

the state, of which the court is an instrumentality, has sovereign power over

a defendant, either generally or with respect to a particular transaction or

occurrence. The Constitution’s Due Process Clauses come into play

indirectly. For a defendant to be “deprived of life, liberty, or property” with

[F]ederalism concerns do not apply to the federal government. Unlike a

state, which is subject to “territorial limitations” on its power, World-

Wide Volkswagen, 444 U.S. at 294, the United States has authority “to

enforce its laws beyond [its] territorial boundaries,” EEOC v. Arabian

American Oil Co., 499 U.S. 244, 248 (1991), superseded by statute on other

grounds. And rather than the limited and mutually exclusive sovereignty of

the several states, the federal government’s sovereignty includes authority

over foreign commerce and foreign affairs. Indeed, the United States’

“powers of external sovereignty” and its ability to conduct its

relationships with foreign actors are grounded in the United States’ status

in international law as an independent state. United States v. Curtiss-

Wright Export Corp., 299 U.S. 304, 318 (1936).

Brief of Intervenor–Appellant United States at 35–40, Fuld v. Palestinian Liberation

Org. (2d Cir. June 24, 2022) (Nos. 22-76, 22-496).

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the constitutionally required “due process of law,” a properly authorized

court must have rendered a lawful judgment in the proper manner. See

Sachs, Pennoyer was Right, supra, at 1314; Sachs, Unlimited Jurisdiction,

supra, at 1726–27. A court is only properly authorized when it is enabled to

partake of the state’s sovereign power over the defendant. Without

authority, the court’s judgment is “waste paper,” and execution of the

judgment would be unconstitutional for lack of due process. See Voorhees v.

Jackson, 35 U.S. (10 Pet.) 449, 469, 475 (1836).

Domestically, Fourteenth Amendment due process thus prevents

states from unjustifiably trenching on others’ sovereign prerogative to have

their courts hear cases concerning defendants residing or doing business

within state borders. See Pennoyer v. Neff, 95 U.S. 714, 732–33 (1877).

Applicable to state action, and here, interstate action, the Fourteenth

Amendment necessarily carries federalist cargo.

But in the international sphere, our Constitution dictates no particular

ordering of relations with other countries. Rather, the Constitution assigns

that job to Congress and the President. See U.S. Const. art. I, § 8, cl. 3

(congressional power to “regulate Commerce with foreign Nations”); id. art.

I, § 8, cl. 10 (congressional power to “define and punish Piracies and Felonies

committed on the high Seas, and Offenses against the Law of Nations”); id.

art. I, § 8, cl. 11 (congressional power to “declare War, grant Letters of

Marque and Reprisal, and make Rules concerning Captures on Land and

Water”); id. art. II, § 2, cl. 1 (presidential designation as “Commander in

Chief”); id. art. II, § 2, cl. 2 (presidential power “to make Treaties”). The

Fifth Amendment, as originally understood, imposes no extrinsic constraint

on our coordinate branches’ exercise of their prerogatives to conduct foreign

relations in and through federal courts. Congress can open the federal

courthouse door to lawsuits against foreign defendants. The Executive can

prosecute or sue foreign actors in federal courts. Because the Fifth

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Amendment, unlike the Fourteenth Amendment, applies to federal courts

and is not shaped by principles of federalism, it poses no barrier.

2.

Dismissing the interstate federalism concerns that animate much of

Fourteenth Amendment personal jurisdiction jurisprudence, the majority

opinion leans heavily on the “individual liberty interest[s]” protected by due

process to justify extending Fourteenth Amendment due process case law

into the Fifth Amendment to protect a foreign corporation. Ante at 14–17.

This amounts to an improper, unhesitating expansion of substantive due

process.

As a preliminary matter, it is not entirely clear whether foreign

defendants abroad have due process rights in the first place. On the one hand,

the Supreme Court recently emphasized that “it is long settled as a matter of

American constitutional law that foreign citizens outside U.S. territory do

not possess rights under the U.S. Constitution.” Agency for Int’l Dev. v. All.

for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 (2020) (citing, inter alia,

Boumediene v. Bush, 553 U.S. 723, 770–71 (2008), United States v. Verdugo-

Urquidez, 494 U.S. 259, 265–75 (1990), and Johnson v. Eisentrager, 339 U.S.

763, 784 (1950) (opinion of Jackson, J.)).27 On the other hand, as the majority

opinion correctly notes, a slew of Fourteenth Amendment personal

jurisdiction cases has, without question, accepted the premise that foreign

corporations have due process rights as to personal jurisdiction. Ante at 7–8.

27

See also Hernandez v. United States, 785 F.3d 117, 126 (5th Cir. 2015) (Jones, J.,

concurring) (“The Supreme Court [has] held . . . and has reiterated . . . that as a general

matter aliens outside the sovereign territory of the United States are not entitled to Fifth

Amendment rights.” (citing Johnson, 339 U.S. at 782–85)); Castro v. Cabrera, 742 F.3d 595,

599 n.5 (5th Cir. 2014) (noting that Johnson “reject[ed] extraterritorial application of the

Fifth Amendment”).

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Absent Supreme Court resolution of this perplexing problem, the Supreme

Court’s Fourteenth Amendment cases suggest that, as to personal

jurisdiction, foreign actors abroad do have rights under the United States

Constitution, anomalous as that may be. See, e.g., Daimler, 571 U.S. at 139–

41; Asahi, 480 U.S. at 114–15.

For better or worse, the words “due process of law” as used in the

Fourteenth Amendment have always had, or else have since acquired, a

substantive aspect that was never borne by the words per legem terrae in

Magna Carta or “due process of law” as they were used at the Founding. See

Williams, supra, at 428–34 (tracing the history of “due process” to explain

how the Fourteenth Amendment’s Due Process Clause is substantive,

whereas the Fifth Amendment’s is not); United States v. Vaello Madero, 142

S. Ct. 1539, 1535 (2022) (Thomas, J., concurring) (“[T]he Fifth

Amendment’s text and history provide little support for modern substantive

due process doctrine.”).28 The liberty interest that the majority opinion

expounds is substantive in character. Ante at 8, 24 (concluding that non-

resident, non-consenting defendants have a liberty-based right of immunity

from suit in United States federal court). See generally Wendy Collins

Perdue, Sin, Scandal, and Substantive Due Process: Personal Jurisdiction and

Pennoyer Reconsidered, 62 Wash. L. Rev. 479 (1987) (parsing the nature of

the liberty interest at stake in the personal jurisdiction analysis under the

Fourteenth Amendment and concluding that it is “a substantive due process

28

See also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847 (1992) (“[T]he

guaranties of due process, though having their roots in Magna Carta’s ‘per legem terrae’ and

considered as procedural safeguards ‘against executive usurpation and tyranny,’ have in

this country become ‘bulwarks also against arbitrary legislation.’” (quoting Poe v. Ullman,

367 U.S. 497, 541 (1961) (Harlan, J., dissenting))).

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right”).29 While the Supreme Court has instructed us that the Fourteenth

Amendment protects substantive personal-jurisdiction rights, it has not done

so with the Fifth Amendment, and extending such a right here does not

comport with the Fifth Amendment’s meaning at the Founding.

Of course, the Supreme Court has ascribed to the Fifth Amendment

Due Process Clause a “substantive” facet alongside the Fourteenth

Amendment. See, e.g., United States v. Salerno, 481 U.S. 739, 746 (1987)

(acknowledging “[s]o-called ‘substantive due process’” under the Fifth

Amendment); Wright v. United States, 302 U.S. 583, 607 (1938) (holding that

“[t]he phrase ‘due process’ in the Fifth and Fourteenth Amendments has

long since been expanded beyond its literal meaning of due procedure”). But

the Supreme Court has also limited the expansion of “substantive due

process” in recent decades. See Collins v. City of Harker Heights, 503 U.S.

115, 125 (1992) (expressing “reluctan[ce] to expand the concept of

substantive due process because guideposts for responsible decisionmaking

in this unchartered area are scarce and open-ended”). If, as the majority

opinion urges, we are to treat Fourteenth Amendment due process

jurisprudence as equally applicable to Fifth Amendment due process, we

ought to consider its limits, too.

In the seminal case of Washington v. Glucksberg, the Court outlined

two limiting factors to assess when faced with a novel substantive due process

claim: First, the “fundamental right” asserted must be, “objectively, ‘deeply

rooted in this Nation’s history and tradition.’” 521 U.S. 702, 720–21 (1997)

(quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977)). And second,

29

See also Jay Conison, What Does Due Process Have to Do with Jurisdiction?, 46

Rutgers L. Rev. 1071, 1158, 1192–99, 1209 (1994) (“The constitutional law of personal

jurisdiction is a hodge-podge of nineteenth-century natural justice and natural rights, early

twentieth-century substantive due process, and general law.”).

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the “asserted fundamental liberty interest” must be amenable to a “careful

description.” Id. at 527 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).

We have adopted and applied this framework. See Malagon de Fuentes v.

Gonzales, 462 F.3d 498, 505 (5th Cir. 2006) (“To establish a substantive due

process violation, a plaintiff must first both carefully describe that right and

establish it as ‘deeply rooted in this Nation’s history and tradition.’”

(quoting Glucksberg, 521 U.S. at 720–21)); see also Cantu-Delgadillo v. Holder,

584 F.3d 682, 687 (5th Cir. 2009).

In considering whether to introduce into Fifth Amendment Due

Process Clause jurisprudence a novel substantive due process right to

immunity from personal jurisdiction in federal court, we ought to follow the

Glucksberg framework. And that framework clearly precludes the majority

opinion’s expansion of substantive due process by “reverse incorporating”

Fourteenth Amendment case law into the Fifth Amendment.

Taking the second factor first, the right that the majority opinion

asserts in the name of individual liberty is not amenable to a clear and limited

description. The Supreme Court itself has wavered in its articulation of the

liberty interest at stake in its Fourteenth Amendment cases and has

frequently discussed the issue in terms of “interstate federalism.”30 Case

30

Compare, e.g., Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S.

694, 702 (1982) (“The personal jurisdiction requirement recognizes and protects an

individual liberty interest.”), with Hanson, 357 U.S. at 251 (noting that limits on personal

jurisdiction are ultimately a “consequence of territorial limitations on the power of the

respective States”), Bristol-Myers, 137 S. Ct. at 1780 (same), and World–Wide Volkswagen,

444 U.S. at 293 (“The sovereign

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