Petition for Writ of Certiorari — Stephen Douglass, Individually and as Personal Representative of the Estate of Shingo Alexander Douglass, et al., Petitioners v. Nippon Yusen Kabushki Kaisha
Supreme Court briefDec 14, 2022
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No. _____
In the
Supreme Court of the United States
STEPHEN DOUGLASS, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF SHINGO
ALEXANDER DOUGLASS, et al.,
v.
Petitioners,
NIPPON YUSEN KABUSHIKI KAISHA,
Respondent.
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
Marc Fiedler
Robert S. Peck
David M. Schloss
Counsel of Record
Kasey K. Murray
CENTER FOR CONSTITUTIONAL
LITIGATION, PC
KOONZ MCKENNEY
JOHNSON & DEPAOLIS LLP 1901 Connecticut Ave., N.W.
2001 Pennsylvania Ave.,
Suite 1008
N.W., Suite 530
Washington, DC 20009
Washington, DC 20006
Phone: (202) 944-2874
Phone: (202) 659-5500
robert.peck@cclfirm.com
Additional Counsel for Petitioners on Inside Cover
Thomas Schoenbaum, JD, PH.D
2181 Jamieson Avenue
Suite 1409
Alexandria VA 22314
tjschoen@uw.edu
Counsel for Petitioners
i
QUESTIONS PRESENTED
This Court has specifically left open the question
of whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a
federal court [as the Fourteenth Amendment imposes
on state courts],” Bristol-Myers Squibb Co. v. Sup. Ct.,
137 S. Ct. 1773, 1783-84 (2017). It has also acknowledged that the “United States is a distinct sovereign
[so that] a defendant may in principle be subject to the
jurisdiction of the courts of the United States but not
of any particular State.” J. McIntyre Mach., Ltd. v.
Nicastro, 564 U.S. 873, 884 (2011) (plurality op.). This
case provides an excellent vehicle to address this open
issue in the context of death and injuries to U.S. Navy
personnel when their ship was struck by a foreign container ship in the East China Sea. Two questions are
presented:
1. Whether the Fifth Amendment’s Due Process
Clause requires a foreign defendant to be at
home – the test for state-court general jurisdiction under the Fourteenth Amendment –
when jurisdiction under Federal Rule of Civil
Procedure 4(k)(2) is invoked, which would
make that Rule a nullity.
2. Whether personal jurisdiction exists under Article III of the Constitution, which endows federal courts with admiralty jurisdiction, and
the law of nations when a foreign ship collides
with an American ship, in this instance an
American warship, on the high seas.
ii
PARTIES TO THE PROCEEDING
Petitioners 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; and Carmen Sibayan, individually and as personal representative of the Estate of Carlos Victor Ganzon Sibayan were plaintiffs
in the district court in Douglass v. Nippon Yusen Kabushiki Kaisha, Civ. No. 19-13688 [App. 159] and appellants in the consolidated case before the court of appeals.
Petitioners Jhon Alcide, Richard Allen-Easmon,
Dustin Angle, Jesus Arguello, Valerie Arguello, Francis Asuncion, Marissa Asuncion, Sascha Belin, LeeAnn Bienaime, Lehonard Bienaime, Lakitra BurnsJones, Deonte Carter, Carlos Clark, Ciera Clark,
Christopher Delong, Elizabeth Felderman, Rod
Felderman, Megan Fitzpatrick, Casey Frenzel, Richard Gant, Samantha Gant, Marnitta George, Rollin
George, Lindsay Gonzalez, Raul Gonzalez, Rainford
Graham, Terry Guidry, Megan Hrncir, Sherria Hughley, Jermaine Jones, Ana Kenebrew, Freddie
iii
Kenebrew, Derrick Kennerly, Obra King, Anthonie
LaMay, Erin LaMay, Gaylord Lawrence, Sydnee
LeGrande, Daniel Lee, Tylor Locklear, Wilfred Marquis, Joshua Mason, Rel Mason, Matthew Matczak,
John Mead, Antoinette Morton, Antonio Morton,
Christian Nash, Jared Ogilvie, Valeria Reinoso, Christopher Rivera, Tuyuan Rivera, Jackson Schrimsher,
Michael Sheppard, Joshua Tapia, Daniel Taylor, Michael Watson, Samuel Williams, III, TyQuail Williams, Timothy Winters, Rashad Wood, and Jacqueline Wrage were plaintiffs in the district court in Alcide
v. Nippon Yusen Kabushiki Kaisha, Civ. No. 19-13691
[App. 204] and appellants in the consolidated case before the court of appeals.
Respondent Nippon Yusen Kabushiki Kaisha was
defendant in both cases in the district court and appellee in the court of appeals.
STATEMENT OF RELATED PROCEEDINGS
The following proceedings are directly related to
this case within the meaning of Rule 14.1(b)(iii):
•
Douglass v. Nippon Yusen Kabushiki Kaisha,
No. 20-30382 consolidated with No. 20-30379,
U.S. Court of Appeals for the Fifth Circuit. Rehearing en banc judgment entered August 16,
2022, vacating judgment entered April 30,
2021.
•
Douglass v. Nippon Yusen Kabushiki Kaisha,
Civ. No. 19-13688, U.S. District Court for the
iv
Eastern District of Louisiana. Judgment entered June 4, 2020.
•
Alcide v. Nippon Yusen Kabushiki Kaisha, Civ.
No. 19-13691, U.S. District Court for the Eastern District of Louisiana. Judgment entered
June 4, 2020.
v
TABLE OF CONTENTS
QUESTIONS PRESENTED......................................... i
PARTIES TO THE PROCEEDING ............................ii
STATEMENT OF RELATED PROCEEDINGS ....... iii
APPENDIX INDEX ................................................... vii
TABLE OF AUTHORITIES ....................................... ix
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .................................. 2
STATEMENT OF THE CASE .................................... 3
A. Underlying Facts. ........................................... 3
B. Applicable Rule. .............................................. 5
C. Proceedings Below. ......................................... 6
1. District Court.................................................. 6
2. Court of Appeals. ............................................ 7
3. En Banc Review. ............................................. 7
REASONS FOR GRANTING THE PETITION........ 10
I.
THIS CASE PRESENTS RECURRING ISSUES
OF GREAT NATIONAL IMPORTANCE. ......... 11
II. THE CIRCUITS CHANGED THEIR
UNDERSTANDING OF FIFTH AMENDMENT
DUE PROCESS FOR PERSONAL
JURISDICTION TO REFLECT FOURTEENTH
vi
AMENDMENT PRECEDENTS IN CIVIL
CASES, IN CONFLICT WITH THE COURTS’
TREATMENT IN CRIMINAL CASES. ............. 16
A. Circuits that Have Examined Fifth
Amendment Due Process and Personal
Jurisdiction, Since Daimler, Have Reflexively
Abandoned Fifth Amendment Analyses for
Fourteenth Amendment Standards. ............ 16
B. Due Process for Extraterritorial Personal
Jurisdiction in Criminal Cases Emphasizes
U.S. Interests, Not Fourteenth Amendment
Standards. .................................................... 18
III. THE FIFTH CIRCUIT’S DEPARTURE FROM
THIS COURT’S PRECEDENTS AND THE
CONSTITUTION’S INCORPORATION OF THE
LAW OF NATIONS TO LIMIT ADMIRALTY
JURISDICTION IS ANOTHER ISSUE OF
GREAT NATIONAL IMPORTANCE. ............... 22
A. Admiralty Incorporates International Custom
and Law so that Settled Usages Permit
Extraterritorial Personal Jurisdiction. ........ 22
B. Most Circuits Erroneously Followed Daimler
to Change their Personal Jurisdiction
Approach to Admiralty Cases ...................... 25
IV. THE DECISION BELOW IS INCORRECT. ..... 27
CONCLUSION .......................................................... 37
vii
APPENDIX INDEX
Appendix A Opinion in the United States Court of
Appeals for the Fifth Circuit
(August 16, 2022) . . . . . . . . . . . . . App. 1
Appendix B On Petition for Rehearing En Banc
Opinion in the United States Court of
Appeals for the Fifth Circuit
(July 2, 2021) . . . . . . . . . . . . . . App. 131
Appendix C Opinion in the United States Court of
Appeals for the Fifth Circuit
(April 30, 2021) . . . . . . . . . . . . . App. 134
Appendix D Order and Reasons, 19-13688,
Douglass et al. v. Nippon Yusen Kabushiki Kaisha, in the United States
District Court Eastern District of
Louisiana (June 4, 2020) . . . . . App. 159
Appendix E Judgment, 19-13688, Douglass et al. v.
Nippon Yusen Kabushiki Kaisha, in the
United States District Court Eastern
District of Louisiana
(June 4, 2020) . . . . . . . . . . . . . . App. 202
Appendix F Order and Reasons, 19-13691, Alcide
et al. v. Nippon Yusen Kabushiki Kaisha, in the United States District Court
Eastern District of Louisiana
(June 4, 2020) . . . . . . . . . . . . . . App. 204
viii
Appendix G Judgment, 19-13691, Alcide et al. v.
Nippon Yusen Kabushiki Kaisha, in the
United States District Court Eastern
District of Louisiana
(June 4, 2020) . . . . . . . . . . . . . . App. 247
Appendix H Constitutional Provisions and Rules
Involved. . . . . . . . . . . . . . . . . . . App. 249
ix
TABLE OF AUTHORITIES
Cases
Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661 (7th
Cir. 2012), aff'd sub nom. Fischer v. Magyar
Allamvasutak Zrt., 777 F.3d 847 (7th Cir.), cert.
denied, 576 U.S. 1006 (2015) ........................... 13, 17
Abelesz v. OTP Bank, 692 F.3d 638 (7th Cir. 2012) . 17
Adams v. Unione Mediterranea Di Sicurta, 364 F.3d
646 (5th Cir. 2004) ............................................. 6, 36
Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.)
511 (1828) ............................................................... 23
Asahi Metal Indus. Co. v. Sup. Ct., 480 U.S. 102
(1987) ...................................................................... 12
Atl. Transp. Co. of W. Va. v. Imbrovek, 234 U.S. 52
(1914) ...................................................................... 24
Bd. of Trustees, Sheet Metal Workers’ Nat’l Pension
Fund v. Elite Erectors, Inc., 212 F.3d 1031 (7th Cir.
2000) ....................................................................... 31
Beard v. Beard, 21 Ind. 321 (1863) ........................... 31
Blackmer v. United States, 284 U.S. 421 (1932) ...... 33
BMW of N. Am. LLC v. M/V Courage, 254 F. Supp.
3d 591 (S.D.N.Y. 2017)........................................... 26
BP Chemicals Ltd. v. Formosa Chem. & Fibre Corp.,
229 F.3d 254 (3d Cir. 2000) ................................... 16
Bristol-Myers Squibb Co. v. Sup. Ct., 137 S. Ct. 1773
(2017) ................................................................ 12, 28
Brown v. Lull, 4 F.Cas. 407 (No. 2,018) (C.C.D. Mass.
1836) ....................................................................... 34
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)
................................................................................ 36
x
Burnham v. Sup. Ct., 495 U.S. 604 (1990) ............... 13
Burnham v. Superior Court, 495 U.S. 604 (1990) ... 29,
30
Cafeteria Workers v. McElroy, 367 U.S. 886 (1961) . 29
Coats v. Penrod Drilling Corp., 61 F.3d 1113 (5th Cir.
1995) ....................................................................... 35
Compania de Inversiones Mercantiles, S.A. v. Grupo
Cementos de Chihuahua S.A.B. de C.V., 970 F.3d
1269 (10th Cir. 2020), cert. denied, 141 S. Ct. 2793
(2021) ........................................................................ 5
Complaint of Damodar Bulk Carriers, Ltd., 903 F.2d
675 (9th Cir. 1990) ................................................. 26
Daimler AG v. Bauman, 571 U.S. 117 (2014)........... 17
Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408
(2d Cir. 2005).......................................................... 15
D'Arcy v. Ketchum, 52 U.S. (11 How.) 165
(1850)................................................................ 13, 33
Detroit Trust Co. v. Barlum S.S. Co., 293 U.S. 21
(1934) ...................................................................... 22
ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617 (4th
Cir. 1997), cert. denied, 523 U.S. 1048 (1998)....... 14
Ex parte Woods, 3 Ark. 532 (1841) ............................ 31
Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) .. 23
Fortis Corporate Ins. v. Viken Ship Mgmt., 450 F.3d
214 (6th Cir. 2006) ................................................. 27
Goss v. Lopez, 419 U.S. 565 (1975) ........................... 29
Haisten v. Grass Valley Medical Reimbursement
Fund, Ltd., 784 F.2d 1392 (9th Cir. 1986) ............ 26
Harden v. Gordon, 11 F.Cas. 480 (No. 6,047) (C.C.D.
Me. 1823) ................................................................ 34
In re Murchison, 349 U.S. 133 (1955) ....................... 31
xi
Ins. Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U.S. 694 (1982) .................................. 13
International Shoe Co. v. Washington, 326 U.S. 310
(1945) ...................................................................... 31
J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873
(2011) ............................................................... 12, 18
Livnat v. Palestinian Auth., 851 F.3d 45 (D.C. Cir.
2017), cert. denied, 139 S.Ct. 373 (2018) ............... 17
Lyngaas v. Ag, 992 F.3d 412 (6th Cir. 2021) ............ 17
Mathews v. Eldridge, 424 U.S. 319 (1976) ............... 31
Merchants Nat’l Bank of Mobile v. Dredge Gen. G. L.
Gillespie, 663 F.2d 1338 (5th Cir. 1981) ............... 24
Milliken v. Meyer, 311 U.S. 457 (1940) ..................... 31
Mudd v. Yarbrough, 786 F. Supp. 2d 1236 (E.D. Ky.
2011) ....................................................................... 14
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306 (1950) ............................................................... 31
Murray’s Lessee v. Hoboken Land & Imp. Co., 59 U.S.
(18 How.) 272 (1856) .............................................. 30
Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14 (2004) ........ 24
Omni Cap. Int’l v. Rudolf Wolff & Co., 484 U.S. 97
(1987) ............................................................ 5, 12, 29
Patterson v. Aker Sols. Inc., 826 F.3d 231 (5th Cir.
2016) ....................................................................... 17
Pennoyer v. Neff, 95 U.S. 714 (1877) ......................... 30
Phillip Gall & Son v. Garcia Corp., 340 F. Supp.
1255 (E.D. Ky. 1972) .............................................. 15
Picquet v. Swan, 19 F. Cas. 609 (C.C.D. Mass. 1828)
.......................................................................... 32, 33
Poe v. Ullman, 367 U.S. 497 (1961) .......................... 29
xii
Polar Shipping Ltd. v. Oriental Shipping Corp., 680
F.2d 627 (9th Cir. 1982) ......................................... 23
Porina v. Marward Shipping Co., 521 F.3d 122 (2d
Cir. 2008) .................................................... 16, 25, 26
R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir.
1999) ....................................................................... 23
Rochin v. California, 342 U.S. 165 (1952) ................ 30
Schiffahartsgesellschaft Leonhardt & Co. v. A.
Bottacchi S.A. De Navegacion, 773 F.2d 1528 (11th
Cir. 1985) ................................................................ 22
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins.
Co., 559 U.S. 393 (2010)........................................... 9
Shaffer v. Heitner, 433 U.S. 186 (1977) .................... 13
Southern Pac. Co. v. Jensen, 244 U.S. 205 (1917) .... 34
The Belgenland, 114 U.S. 355 (1885).................. 34, 35
The Dutra Grp. v. Batterton, 139 S. Ct. 2275
(2019)....................................................................... 34
The Paquete Habana, 175 U.S. 677 (1900) ............... 22
The Plymouth, 70 U.S. (3 Wall.) 20 (1865) ............... 24
The Resolute, 168 U.S. 437 (1897) ............................ 34
The Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch)
116 (1812) ............................................................... 35
The Ship Catherina, 23 Fed. Cas. 1028 (D. Pa. 1795)
................................................................................ 23
Toland v. Sprague, 37 U.S. 300 (1838) ..................... 33
United Rope Distributors, Inc. v. Seatriumph Marine
Corp., 930 F.2d 532, 534 (7th Cir. 1991). .............. 26
United States v. Ballestas, 795 F.3d 138 (D.C. Cir.
2015), cert. denied, 577 U.S. 1166 (2016) .............. 20
xiii
United States v. Cabezas-Montano, 949 F.3d 567,
586-87 (11th Cir.), cert. denied, 141 S.Ct. 814
(2020) ...................................................................... 20
United States v. Conroy, 589 F.2d 1258 (5th Cir.
1979) ....................................................................... 35
United States v. Flores, 289 U.S. 137 (1933) ............ 35
United States v. Iossifov, 45 F.4th 899 (6th Cir. 2022)
................................................................................ 20
United States v. Lawrence, 727 F.3d 386 (5th Cir.
2013), cert. denied, 571 U.S. 1222 (2014) ......... 19-20
United States v. Martinez-Hidalgo, 993 F.2d 1052 (3d
Cir. 1993), cert. denied, 510 U.S. 1048 (1994)....... 19
United States v. Medjuck, 156 F.3d 916 (9th Cir.
1998), cert. denied, 527 U.S. 1006 (1999) .............. 20
United States v. Mohammad-Omar, 323 F. App’x 259
(4th Cir.), cert. denied, 558 U.S. 908 (2009) .......... 19
United States v. Murillo, 826 F.3d 152 (4th Cir.
2016), cert. denied, 137 S.Ct. 812 (2017) ............... 21
United States v. Swiss Am. Bank, Ltd., 191 F.3d 30
(1st Cir. 1999)......................................................... 16
United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) . 19
Waldman v. Palestine Liberation Org., 835 F.3d 317
(2d Cir. 2016), cert. denied sub. nom, Sokolow v.
Palestine Liberation Org., 138 S.Ct. 1438
(2018)................................................................. 17, 21
Wilkinson v. Leland, 27 U.S. (2 Pet.) 627 (1829) ..... 15
World Tanker Carriers Corp. v. M/V Ya Mawlaya, 99
F.3d 717 (5th Cir. 1996) ......................................... 16
World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286 (1980). .............................................................. 12
xiv
Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199 (1996) ............................................................... 24
Statutes
15 U.S.C. § 77v .......................................................... 15
15 U.S.C. § 78aa ........................................................ 15
15 U.S.C. § 80a .......................................................... 15
18 U.S.C. § 32 ............................................................ 19
28 U.S.C. 2403 ........................................................... 37
Bankruptcy Act, 11 U.S.C. § 541 .............................. 15
Clayton Antitrust Act, 15 U.S.C. § 22 ...................... 14
Death on the High Seas Act (DOHSA), 46 U.S.C. §§
30301 et seq. ............................................................. 6
False Claims Act, 31 U.S.C. § 3732 .......................... 15
Interpleader Act, 28 U.S.C. § 2361 ........................... 14
Judicial Improvements and Access to Justice Act of
1988, Pub. L. No. 100-702, tit. IV, § 401, 102 Stat.
4642, 4648 (1988) (amending 28 U.S.C. § 2072) ..... 9
RICO, 18 U.S.C. §§ 1961-1968 .................................. 14
Other Authorities
Alexander Porter Morse, The International Status of
a Public Vessel in Foreign Waters, 50 Albany L.J.
204 (1894) ............................................................... 35
Fed. R. Civ. P. 4(k)(2) advisory comm. note of
1993 ....................................................................... 5, 6
Lawrence B. Solum & Max Crema, Originalism and
Personal Jurisdiction: Several Questions and a Few
Answers, 73 Ala. L. Rev. 483 (2022) ...................... 32
xv
Max Crema & Lawrence B. Solum, The Original
Meaning of "Due Process of Law" in the Fifth
Amendment, 108 Va. L. Rev. 447 (2022) ............... 32
Stephen E. Sachs, The Unlimited Jurisdiction of the
Federal Courts, 106 Va. L. Rev. 1703 (2020) ........ 32
Rules
Fed. R. Civ. P. 9 ......................................................... 22
Rule 4 ....................................................................... 5, 6
Treatises
14A Charles Alan Wright & Arthur Miller, FED.
PRAC. & PROC. (4th ed.) .......................................... 24
3 Joseph Story, COMMENTARIES ON THE CONSTITUTION
OF THE UNITED STATES (1833) ................................ 24
Thomas M. Cooley, A TREATISE ON THE
CONSTITUTIONAL LIMITATIONS WHICH REST UPON
THE LEGISLATIVE POWER OF THE STATES OF THE
AMERICAN UNION (1868) ........................................ 30
Constitutional Provisions
U.S. Const. art. III, § 2, cl. 1 ............................... 22, 23
1
In the
Supreme Court of the United States
_____________________________________
STEPHEN DOUGLASS, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF SHINGO
ALEXANDER DOUGLASS; ET AL.,
v.
Petitioners,
NIPPON YUSEN KABUSHIKI KAISHA,
Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
_________________________________________________
PETITION FOR A WRIT OF CERTIORARI
_________________________________________________
Stephen Douglass, et al., respectfully petition for
a writ of certiorari to review the judgment of the
United States Court of Appeals for the Fifth Circuit in
this case.
OPINIONS BELOW
The en banc opinion of the Fifth Circuit is reported
at 46 F.4th 226 and included in the Appendix (“App.”)
at App. 1. The panel opinion of that court is reported
at 996 F.3d 289 (App. 134). The district court’s identical decisions granting Respondent’s motions to
2
dismiss are reported at 465 F.Supp.3d 588 (App. 159)
and 465 F.Supp.3d 610 (App. 204).
JURISDICTION
The Fifth Circuit entered its en banc judgment on
August 16, 2022. App. 1. On November 3, 2022, Justice
Alito extended the time to file this Petition to December 14, 2022. No. 22A386. This Court’s jurisdiction
rests on 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fifth Amendment provides:
No person shall . . . be deprived of life, liberty,
or property, without due process of law.
Federal Rule of Civil Procedure 4(k)(2) provides:
(k) Territorial Limits of Effective Service.
(1) In General. Serving a summons or filing a
waiver of service establishes personal jurisdiction over a defendant:
***
(2) Federal Claim Outside State-Court Jurisdiction. For a claim that arises under federal
law, serving a summons or filing a waiver of
service establishes personal jurisdiction over a
defendant if:
3
(A) the defendant is not subject to jurisdiction
in any state’s courts of general jurisdiction;
and
(B) exercising jurisdiction is consistent with
the United States Constitution and laws.
U.S. Const., Article III, Section 2, cl. 1 provides:
The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their
Authority; . . . to all Cases of admiralty and
maritime Jurisdiction, . . .
STATEMENT OF THE CASE
A. Underlying Facts.
Seven U.S. Navy sailors died and at least forty
were injured on June 17, 2017, when a 730-foot long,
39,565-deadweight-ton commercial container vessel,
the ACX Crystal, chartered to and within the fleet of
Respondent Nippon Yusen Kabushiki Kaisha (NYK),
struck the U.S.S. Fitzgerald, a Navy destroyer, some
eighty nautical miles southwest of the U.S. Naval base
at Yokosuka, Japan and within the territorial waters
of Japan. App. 136.
Despite the collision’s location, NYK is no stranger
to the United States. As succinctly stated by the fivejudge principal dissent, NYK’s:
4
ships regularly call on at least thirty United
States ports, averaging about 1,500 calls annually—more than four calls per day. In a
highly fragmented market, it ranked tenth in
United States containerized export trade and
twelfth in import trade in 2013. Part of its fleet
does nothing but deliver cars to the United
States. NYK operates twenty-seven shipping
terminals in United States ports and air-cargo
service at six United States airports. Its employees work at the corporation’s American
subsidiaries. Shares of NYK stock are deposited at the Bank of New York Mellon and may
be purchased by United States investors. All
told, NYK reaps roughly $1.5 billion in annual
revenue in North America.
In the course of doing business here, NYK
has frequently availed itself of the American
legal system. The corporation has brought at
least seventy-eight lawsuits in federal court
since 1993 (almost three per year), thus invoking the power of our courts to demand over $22
million in damages.
App. 96-97 (Elrod, J., dissenting).
In addition, NYK opened its first office in the
United States in 1920 and maintains employees here.
App. 5. NYK’s bills of lading and sea waybills specify
“U.S. Law” applies and the United States District
Court for the Southern District of New York has “exclusive jurisdiction to hear all disputes” relating to
“shipments to or from the United States.” App. 103.
5
NYK is also licensed and “highly regulated by the Federal Maritime Commission.” App. 162.
B. Applicable Rule.
Rule 4(k)(2), widely described as a federal longarm statute, 1 establishes personal jurisdiction
through service if (1) the claim arises under federal
law, (2) the defendant is not subject to jurisdiction in
any state’s court of general jurisdiction; and (3) exercising jurisdiction is consistent with Fifth Amendment
due process. It provides personal jurisdiction based on
contacts with the nation as a whole. See Fed. R. Civ.
P. 4(k)(2) advisory comm. note of 1993 (explaining that
the Fifth Amendment “requires that any defendant
have affiliating contacts with the United States sufficient to justify the exercise of personal jurisdiction
over that party”).
The rule was promulgated and approved by Congress in response to a gap recognized in Omni Cap.
Int’l v. Rudolf Wolff & Co., 484 U.S. 97 (1987). There,
this Court declined to exercise common-law authority
to permit personal jurisdiction over a British commodities broker because the Commodity Exchange Act did
not authorize the requisite service of process. It instead declared doing so “better rests with those who
propose the Federal Rules of Civil Procedure and with
Congress.” Id. at 109, 111.
1 See, e.g., Compania de Inversiones Mercantiles, S.A. v. Grupo
Cementos de Chihuahua S.A.B. de C.V., 970 F.3d 1269, 1282
(10th Cir. 2020), cert. denied, 141 S. Ct. 2793 (2021).
6
Omni Cap.’s invitation to develop a rule resulted
in Rule 4(k)(2). Fed. R. Civ. P. 4(k)(2), advisory comm.
note of 1993. As the Fifth Circuit once put it, personal
jurisdiction under Rule 4(k)(2) exists when the defendant “has continuous and systematic contacts with the
United States as a whole” so that “subjecting [it] to
suit here does not offend notions of fair play and substantial justice.” Adams v. Unione Mediterranea Di
Sicurta, 364 F.3d 646, 651-52 (5th Cir. 2004) (citations
omitted). Every circuit at that time applied that same
national minimum contacts as the due-process test for
Rule 4(k)(2).
C. Proceedings Below.
1. District Court.
On November 18, 2019, two sets of plaintiffs
brought separate actions against NYK in the District
Court for the Eastern District of Louisiana based on
the deaths and injuries resulting from the collision.
The Douglass Plaintiffs brought wrongful death and
survival claims under the Death on the High Seas Act
(DOHSA), 46 U.S.C. §§ 30301 et seq. App. 6. The Alcide
Plaintiffs brought personal-injury and loss-of-consortium claims. App. 6. Both sets of plaintiffs asserted
personal jurisdiction over NYK under Fed. R. Civ. P.
4(k)(2). App. 6.
The district court granted NYK’s motions to dismiss for lack of personal jurisdiction in both cases on
identical grounds, holding that the Fourteenth
Amendment due-process standards for exercising personal jurisdiction also apply under the Fifth
7
Amendment. Therefore, admiralty and other cases
arising under federal law where there is no specific jurisdiction are limited to cases for defendants who are
“at home” in the United States even when not subject
to jurisdiction in state courts. App. 185, 229.
2. Court of Appeals.
Both the Douglass and Alcide Plaintiffs filed
timely notices of appeal on June 18, 2020. The cases
were consolidated, and on April 30, 2021, a panel of
the Fifth Court rendered a per curiam decision affirming the district court’s dismissal, but only because
compelled to by a prior in-circuit precedent. App. 137.
Nonetheless, the panel found “merit” in Petitioners’
position. App. 147. Two panel members, Judges Elrod
and Willett, specially concurred, making clear that
“the case would be decided differently if we were not
bound by [the in-circuit decision].” App. 154-55 (Elrod,
J., concurring). The concurrence urged reconsideration en banc as a “good vehicle” “to correct our course
on Rule 4(k)(2).” App. 155, 158.
3. En Banc Review.
En banc review was granted July 21, 2021. App.
132-33. The court requested the views of the Solicitor
General, who declined. App. 124 n.4. As supplemental
authority, Petitioners filed the United States’ brief in
Fuld v. PLO, Nos. 22-76(L), 22-496(CON) (2d Cir.),
concerning federal jurisdiction under the Promoting
Security and Justice for Victims of Terrorism Act of
2019. There, Intervenor United States expressed its
view that “the Fifth Amendment allows a more expansive assertion of personal jurisdiction than the
8
Fourteenth Amendment” because the former is not
“tied to states’ limited territorial sovereignty” and because the federal government’s powers extend “outside its borders, and include authority over matters of
foreign affairs and foreign commerce.” U.S. Br. 19; see
also id. at 35-40. The U.S. brief also favorably cited the
discussion of the Fifth Amendment’s differences expressed by the panel in this case. U.S. Br. 39 (citing
App. 140-47).
By a 12-5 vote on August 16, 2022, the en banc
court affirmed, holding that the Fifth Amendment requires a plaintiff to show that a foreign defendant subject to Fed. R. Civ. P. 4(k)(2) and admiralty jurisdiction
where the claim does not arise in this country be “essentially at home” to meet Fifth Amendment due process. It borrowed that requirement from the Fourteenth Amendment as applied to general jurisdiction
in state courts. App. 14, 16, 30-32. Although it agreed
that “NYK’s contacts with the United States are, in
absolute terms, substantial,” neither the level of contacts nor Rule 4(k)(2) criteria mattered because NYK
is “incorporated and headquartered in Japan.” App.
32, 31. The majority further found that Rule 4(k)(2)
had, at most, limited application to specific jurisdiction and could not apply to claims of general jurisdiction consistent with due process. App. 22, 27 n.27.
The majority also ruled that “no textual support in
the Fifth Amendment . . . and no case law favor[] . . .
an admiralty ‘exception’ to principles of personal jurisdiction.” App. 29.
9
Two members of the majority concurred to say
that this Court had mandated identical treatment of
the Fifth and Fourteenth Amendments because this
Court had never said otherwise. App. 36 (Ho, J., concurring). 2 The concurrence dismissed original public
understandings of the Fifth Amendment’s limits on
personal jurisdiction as fodder for “scholarly debate.”
App. 37 (Ho, J., concurring). The concurrence added
that until the Supreme Court “embrace[s] the dissent’s view that due process under the Fifth Amendment is indeed different from due process under the
Fourteenth Amendment,” imposition of an at-home
test for Rule 4(k)(2) was required. App. 46-47.
Five judges dissented. The principal dissent undertook an original-public-meaning evaluation of the
Fifth Amendment’s import to personal jurisdiction. It
concluded that, as a matter of the Fifth Amendment’s
text, history, and structure, due process imposed no
restriction on Congress’s ability to “authorize federal
courts’ personal jurisdiction over a foreign defendant”
through the Rules Enabling Act process. App. 48, 52,
109 (Elrod, J., dissenting). 3
2 The dissent challenged this assertion. App. 52-53, 55 & n.4 (cit-
ing cases), 59 (“there is no controlling Supreme Court precedent.”) (Elrod, J., dissenting).
3 Under that process, rules are promulgated by this Court, subject to congressional review. Shady Grove Orthopedic Assocs.,
P.A. v. Allstate Ins. Co., 559 U.S. 393, 407 (2010). Arguably, Congress further ratified Rule 4(k)(2) through enactment of Judicial
Improvements and Access to Justice Act of 1988, Pub. L. No. 100702, tit. IV, § 401, 102 Stat. 4642, 4648 (1988) (amending 28
U.S.C. § 2072).
10
The dissent also disagreed with the majority’s glib
treatment of admiralty jurisdiction, which substantially narrowed “our ability to hear many cases sounding in admiralty—an area of law in which we have
long been empowered to adjudicate claims involving
far-flung parties aboard vessels in far-flung places on
the seven seas.” App. 109.
Judge Higginson separately expressed confidence
that “when the Supreme Court revisits the distinction
[between the two Due Process clauses] it carefully has
preserved, it will take cognizance of all pertinent
scholarship, constitutional and foreign relations law,”
“the real world consequences . . . based both on Supreme Court precedent and also Congress’s Rule
4(k)(2) . . . [to] allow[] more flexibility than the Fourteenth Amendment and permit[] jurisdiction over a
non-US defendant that does systematic and continuous business in the United States.” App. 125 (Higginson, J., dissenting) (cleaned up).
A final dissent said that the Fifth Amendment did
not impose the same restrictions as the Fourteenth on
the exercise of personal jurisdiction by a federal court
and permitted Congress to expand any limits. App.
126 (Oldham, J., dissenting).
REASONS FOR GRANTING THE PETITION
There are two important reasons to grant this Petition. First, the overlay of an at-home requirement as
a function of the Fifth Amendment renders the congressionally endorsed Rule 4(k)(2) a nullity except,
possibly, in some theoretical cases not likely to exist,
while creating doubt on the validity of other federal
11
laws dependent on worldwide service of process. Second, the Court can resolve the recent confusion about
personal jurisdiction as it has long been practiced in
admiralty and maritime cases.
I.
THIS CASE PRESENTS RECURRING ISSUES
OF
GREAT
NATIONAL
IMPORTANCE.
The Fifth Amendment’s Due Process Clause imposes no at-home requirement on Rule 4(k)(2) as a congressionally authorized means of asserting personal
jurisdiction over foreign defendants. Yet, as the five en
banc dissenters cogently stated:
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. . . . 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.
App. 48 (Elrod, J., dissenting).
is
This Court has not addressed whether due process
different under the Fifth and Fourteenth
12
Amendments. See Bristol-Myers Squibb Co. v. Sup.
Ct., 137 S. Ct. 1773, 1784 (2017) (explicitly leaving
“open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal
jurisdiction by a federal court” as the Fourteenth
Amendment does on a state court); J. McIntyre Mach.,
Ltd. v. Nicastro, 564 U.S. 873, 885 (2011) (plurality
op.) (“It may be that . . . Congress could authorize the
exercise of jurisdiction [over foreign defendants] in appropriate courts”); Omni Cap., 484 U.S. at 102 n.5 (recognizing it is an open question); Asahi Metal Indus.
Co. v. Sup. Ct., 480 U.S. 102, 113 n.* (1987) (O’Connor,
J., plurality op.) (same).
Most critically, the decision renders Rule 4(k)(2)
facially unconstitutional, Petitioners submit, but indisputably unconstitutional as applied in most of its
intended uses as a violation of Fifth Amendment due
process. Such a ruling should not go unreviewed.
The two due-process amendments serve very different purposes in the personal-jurisdiction arena.
Fourteenth Amendment due process is “an instrument
of interstate federalism,” Bristol-Myers, 137 S. Ct. at
1781, designed to order the competing interests of coequal States under the Constitution. World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 292
(1980).
The Fifth Amendment assures that personal jurisdiction is the product of a process that provides appropriate notice, but it does not weigh either the federal
government’s sovereignty and other interests, as a
constitutional matter, against foreign policy or the
13
commercial interests of other sovereign nations because “foreign states are not ‘persons’ entitled to rights
under the Due Process Clause.” Abelesz v. Magyar
Nemzeti Bank, 692 F.3d 661, 694 (7th Cir. 2012), aff'd
sub nom. Fischer v. Magyar Allamvasutak Zrt., 777
F.3d 847 (7th Cir.), cert. denied, 576 U.S. 1006 (2015).
That these issues arise out of a projection of American sovereignty abroad through a U.S. Navy warship
and injuries to American servicemen renders the
Questions Presented of particularly great national importance, separate and in addition to its implications
for a global economy in which modern communications, transportation, and manufacturing systems are
transnational in operation. The decision below, denying personal jurisdiction in an admiralty case, also
represents a significant departure from the traditional
law of nations as it was understood by the Framers
when they specified that our federal courts would have
plenary jurisdiction over maritime disputes, even between foreign parties.
Limiting personal jurisdiction to specific and general inaccurately conveys the variety of forms this
Court has recognized as comporting with due process.
Those forms include tag, Burnham v. Sup. Ct., 495
U.S. 604, 619 (1990) (plurality op.); in rem, Shaffer v.
Heitner, 433 U.S. 186, 208 (1977); consent jurisdiction,
Ins. Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 703 (1982); and legislative jurisdiction. D'Arcy v. Ketchum, 52 U.S. (11 How.) 165, 176
(1850). This case provides an ideal vehicle to examine
whether Rule 4(k)(2) satisfies due process under the
Fifth Amendment.
14
Moreover, an at-home requirement renders Rule
4(k)(2) a nullity. For specific jurisdiction, the Rule will
only reach the rare (and possibly non-existent) case
where a state long-arm statute does not extend to constitutional limits, and Rule 4(k)(2) can fill that narrow
interstice for a federal action. For general jurisdiction,
as the court below acknowledged, it will never apply.
App. 27 n.27. It thus will not even reach the fact pattern from Omni Cap. that provided the impetus for the
rule. No defendant will be both outside any state
court’s jurisdiction as required by the Rule and still
“at-home” in the United States.
Adopting the Fifth Circuit’s specific/general jurisdiction dichotomy for congressionally authorized personal jurisdiction may affect a variety of laws that do
not meet Fourteenth Amendment criteria. Domestically, for example, the Interpleader Act provides for
nationwide service of process, 28 U.S.C. § 2361, and
establishes personal jurisdiction over a defendant
“even if she lacks minimum contacts” with the forum
state. Mudd v. Yarbrough, 786 F. Supp. 2d 1236, 124243 (E.D. Ky. 2011). RICO, 18 U.S.C. §§ 1961-1968, also
uses nationwide service of process to overcome lack of
sufficient contacts to satisfy specific jurisdiction and
any at-home requirement to establish personal jurisdiction and venue. See ESAB Grp., Inc. v. Centricut,
Inc., 126 F.3d 617, 621, 627-28 (4th Cir. 1997), cert.
denied, 523 U.S. 1048 (1998).
Transnationally, the Clayton Antitrust Act of
1914 authorized worldwide service of process “wherever [a corporate defendant] may be found.” 15 U.S.C.
§ 22. See, e.g., Phillip Gall & Son v. Garcia Corp., 340
15
F. Supp. 1255, 1257 (E.D. Ky. 1972) (“In anti-trust
suits there may be extraterritorial service of process.).
See also Daniel v. Am. Bd. of Emergency Med., 428
F.3d 408, 424 (2d Cir. 2005) (recognizing the Clayton
Act’s “worldwide service of process,” as long as venue
requirements are met). Similar worldwide congressional authorizations of service exist in the securities
acts, 15 U.S.C. §§ 77v(a), 78aa(a), 80a-43; the False
Claims Act, 31 U.S.C. § 3732(a); and the Bankruptcy
Act, 11 U.S.C. § 541(a), among other statutes.
In contrast to the breadth of congressional authorizations of personal jurisdiction without geographic
limitation, state “legislative and judicial authority . .
[a]re bounded by the territory of that state.” Wilkinson
v. Leland, 27 U.S. (2 Pet.) 627, 655 (1829) (Story, J.).
Petitioners submit that Rule 4(k)(2) creates a constitutionally valid form of congressionally authorized
personal jurisdiction untethered to the artificial categories of specific or general jurisdiction. This Court
has long recognized that Congress has the authority
to authorize personal jurisdiction in the federal courts
where it does not otherwise exist. The Petition should
be granted to uphold that power in Rule 4(k)(2).
16
II. THE CIRCUITS CHANGED THEIR UNDERSTANDING OF FIFTH AMENDMENT DUE
PROCESS FOR PERSONAL JURISDICTION
TO REFLECT FOURTEENTH AMENDMENT
PRECEDENTS IN CIVIL CASES, IN CONFLICT WITH THE COURTS’ TREATMENT
IN CRIMINAL CASES.
A. Circuits that Have Examined Fifth
Amendment Due Process and Personal
Jurisdiction, Since Daimler, Have Reflexively Abandoned Fifth Amendment
Analyses for Fourteenth Amendment
Standards.
The early application of Rule 4(k)(2) recognized
that sufficient national contacts satisfied Fifth
Amendment due process. See, e.g., World Tanker Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d 717, 721 (5th
Cir. 1996) (describing the due-process question as
“whether [defendants] have contacts with the nation
as a whole sufficient to satisfy due process concerns.”).
See also Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind.
Com de Equip. Medico, 563 F.3d 1285, 1296 (Fed. Cir.
2009); Porina v. Marward Shipping Co., 521 F.3d 122,
127 (2d Cir. 2008); BP Chemicals Ltd. v. Formosa
Chem. & Fibre Corp., 229 F.3d 254, 258 (3d Cir. 2000);
United States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 41
(1st Cir. 1999).
But, after this Court held that state-court exercises of personal jurisdiction under the Fourteenth
Amendment must fit either specific and general jurisdiction, with the latter requiring that a defendant be
17
“essentially at home” in the forum, see Daimler AG v.
Bauman, 571 U.S. 117, 127-28 (2014), many courts reflexively and without analysis on the point adopted
the Fourteenth Amendment standard on Rule 4(k)(2).
See, e.g., Patterson v. Aker Sols. Inc., 826 F.3d 231 (5th
Cir. 2016); Livnat v. Palestinian Auth., 851 F.3d 45, 54
(D.C. Cir. 2017), cert. denied, 139 S.Ct. 373 (2018)
(holding both amendments require the same analysis,
while recognizing that “neither the Supreme Court
nor this court has expressly analyzed whether the
Fifth and Fourteenth Amendment standards differ.”);
Waldman v. Palestine Liberation Org., 835 F.3d 317,
330 (2d Cir. 2016), cert. denied sub. nom, Sokolow v.
Palestine Liberation Org., 138 S.Ct. 1438 (2018) (rejecting argument of United States and refusing to “upend settled law”); Lyngaas v. Ag, 992 F.3d 412, 422
(6th Cir. 2021); Abelesz v. OTP Bank, 692 F.3d 638,
660 (7th Cir. 2012). 4
4 Notably, in a companion case decided by the same panel at the
same time, the Seventh Circuit found the OTP Bank personaljurisdiction analysis inapplicable under FSIA. It held that the jurisdictional “inquiry under the FSIA is not congruent with a general personal jurisdiction inquiry.” Magyar Nemzeti Bank, 692
F.3d at 694. It recognized that the personal-jurisdictional talisman under FSIA was the level of “commercial activity” and ordered the district court to permit jurisdictional discovery to that
end. Id. at 666. Thus, the two Seventh Circuit decisions show the
type of doctrinal confusion that the Fifth Circuit panel noted.
App. 158 (Elrod, J., concurring).
18
B. Due Process for Extraterritorial Personal Jurisdiction in Criminal Cases Emphasizes U.S. Interests, Not Fourteenth
Amendment Standards.
Although the en banc majority justified its treatment of Fifth and Fourteenth Amendment due process
identically because of their identical text, the dissenters showed that all circuits abandon that uniformity
when considering extraterritorial personal jurisdiction in criminal cases. App. 91-93 (Elrod, J., dissenting). This anomaly leads to the perverse result of a
stricter standard being applied in civil cases. While
the Fifth Circuit held NYK outside the personal jurisdiction of U.S. courts in this case, the Justice Department faced no similar obstacle to prosecuting NYK for
price-fixing. App. 207. In fact, extraterritorial prosecutions date back to the seventeenth century and have
been a continuous feature of American jurisprudence.
See App. 90-93 (Elrod, J., dissenting) (reviewing history). This ongoing and recurring conflict in reading
the Fifth Amendment’s Due Process Clause is a further reason warranting this Court’s review.
Due process limits a State’s coercive power when
it undertakes judicial process. Nicastro, 564 U.S. at
879. The clause plainly applies to criminal prosecutions as it does to civil lawsuits. Yet, in criminal cases,
the circuits uniformly permit prosecution of foreign
nationals under U.S. laws as long as U.S. interests are
affected or some other U.S. nexus exists. International
law also permits extraterritorial prosecution under
two relevant principles that should equally apply in
the civil context and, in particular, in this case.
19
The circuits are replete with decisions permitting
extraterritorial applications of personal jurisdiction in
criminal cases that run counter to this decision. At
least the Second, Third, Fourth, Fifth, Sixth, Ninth,
Eleventh, and D.C. circuits have found that the Fifth
Amendment has less rigid due-process application for
criminal personal jurisdiction. For example, in United
States v. Yousef, 327 F.3d 56, 87 (2d Cir. 2003), a foreign national prosecuted for conspiracy to bomb
United States commercial airliners in Southeast Asia
was held within “the special aircraft jurisdiction of the
United States,” as authorized by 18 U.S.C. § 32(a)(1)).
It adopted the Ninth Circuit’s due-process standard to
hold that the “substantial intended effect of their attack on the United States and its citizens” was not “so
unrelated to American interests as to render their
prosecution in the United States arbitrary or fundamentally unfair.” Yousef, 327 F.3d at 111-12.
Other circuits have adopted similar or looser
standards. See United States v. Martinez-Hidalgo, 993
F.2d 1052, 1056 (3d Cir. 1993) (holding “nothing fundamentally unfair in [prosecution] exactly as Congress intended—extraterritorially without regard for
a nexus between a defendant’s conduct and the United
States”), cert. denied, 510 U.S. 1048 (1994); United
States v. Mohammad-Omar, 323 F. App’x 259, 262
(4th Cir.) (foreign national prosecution did not violate
due process because the defendant should have “anticipate[d] being haled into court in the United States on
account of his drug trafficking activity in Afghanistan,
Dubai, and Ghana”), cert. denied, 558 U.S. 908 (2009);
United States v. Lawrence, 727 F.3d 386, 396 (5th Cir.
2013) (extraterritorial application of statute to non-
20
U.S. defendants arrested while traveling between two
foreign countries in connection with drug-running exercise of jurisdiction was not “arbitrary or fundamentally unfair.”), cert. denied, 571 U.S. 1222 (2014);
United States v. Iossifov, 45 F.4th 899, 914 (6th Cir.
2022) (“even assuming that the Fifth Amendment limits congressional authority to criminalize extraterritorial conduct, . . . prosecution [of Bulgarian national
who never stepped foot in the United States] did not
run afoul of those limits because it was not arbitrary
or fundamentally unfair”); United States v. Medjuck,
156 F.3d 916, 918 (9th Cir. 1998) (“extraterritorial application of United States penal statutes . . . satisfy the
strictures of due process [when] there exists ‘a sufficient nexus between the conduct condemned and the
United States’ such that the application of the statute
would not be arbitrary or fundamentally unfair to the
defendant”), cert. denied, 527 U.S. 1006 (1999); United
States v. Cabezas-Montano, 949 F.3d 567, 586-87 (11th
Cir.) (rejecting argument that Fifth Amendment “due
process prohibits the prosecution of foreign nationals
for offenses bearing no ‘nexus’ to the United States.”),
cert. denied, 141 S.Ct. 814 (2020); United States v.
Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015) (holding
no due-process violation because “[t]here is no arbitrariness or fundamental unfairness” in prosecuting a
Columbian citizen for drug running through vessels on
the high seas), cert. denied, 577 U.S. 1166 (2016). See
also App. 92-93 (Elrod, J., dissenting) (citing cases).
In holding that criminal and civil due-process considerations for personal jurisdiction are different,
these circuits typically rely on two justifications. One
theorizes that authority over a criminal prosecution is
21
warranted when the defendant’s actions “‘affected significant American interests’—even if the defendant
did not mean to affect those interests,” United States
v. Murillo, 826 F.3d 152, 157 (4th Cir. 2016), cert. denied, 137 S.Ct. 812 (2017). Another distinction treats
intent to “harm U.S. citizens and interests and to
threaten the security of the United States” differently
from “terror attacks” abroad unless there is “evidence
the attacks specifically targeted United States citizens.” Waldman, 835 F.3d at 341.
Neither rationale explains why Fifth Amendment due
process requires a foreign defendant’s liberty interests
to vary depending on whether the case is criminal or
civil. See App. 90 (“The majority opinion wholly neglects to explain why it elevates foreign civil defendants above criminal defendants for special due-process
solicitude in this context.”), 93 (Elrod, J., dissenting).
The sovereign interests of the United States can be as
acute in a civil matter as in a criminal one, especially
here, where the United States would be as interested
in compensation for the harm that befell its naval destroyer from the collision as for the harm to its personnel. Imposing an at-home requirement in addition to
the strong nexus of interest evident here cannot be justified under the Fifth Amendment and warrants this
Court’s review.
22
III. THE FIFTH CIRCUIT’S DEPARTURE FROM
THIS COURT’S PRECEDENTS AND THE
CONSTITUTION’S INCORPORATION OF
THE LAW OF NATIONS TO LIMIT ADMIRALTY JURISDICTION IS ANOTHER ISSUE
OF GREAT NATIONAL IMPORTANCE.
A. Admiralty Incorporates International
Custom and Law so that Settled Usages
Permit Extraterritorial Personal Jurisdiction.
Admiralty is different, substantively and procedurally from other categories of U.S. law. See
Schiffahartsgesellschaft Leonhardt & Co. v. A. Bottacchi S.A. De Navegacion, 773 F.2d 1528, 1535 (11th Cir.
1985); Fed. R. Civ. P. 9(h) (permitting plaintiff to identify a case as a maritime claim for certain purposes).
The Framers recognized the existence in international law of a vast body of preexisting admiralty law
and procedure that secured to the federal government
all dominion over it by assigning the judiciary the authority over “all Cases of admiralty and maritime Jurisdiction.” U.S. Const. art. III, § 2, cl. 1. As a result, it
made the relevant international law part of our domestic law, The Paquete Habana, 175 U.S. 677, 700
(1900), “‘subject to power in Congress to alter, qualify
or supplement it as experience or changing conditions
might require.’” Detroit Trust Co. v. Barlum S.S. Co.,
293 U.S. 21, 43 (1934) (quotation omitted).
It is significant that federal courts sit as commonlaw courts in admiralty, Exxon Shipping Co. v. Baker,
23
554 U.S. 471, 507 (2008), and exercise that commonlaw authority “[s]ubject to direction from Congress.”
Air & Liquid Sys. Corp., 139 S. Ct. at 992 (citation
omitted). Still, “[a]dmiralty law is a species of international law, administered by the courts of maritime nations, including specifically the courts of the United
States.” Polar Shipping Ltd. v. Oriental Shipping
Corp., 680 F.2d 627, 636 (9th Cir. 1982).
Unlike cases that are subject to the Fourteenth
Amendment, admiralty involves a largely unique interplay between subject-matter and personal jurisdiction. The Constitution specifies that admiralty subject-matter jurisdiction is plenary. U.S. Const. art. III,
§ 2, cl. 1. In fact, admiralty is the only instance where
the Constitution extends judicial power to a body of
law that predates the Constitution. See The Ship
Catherina, 23 Fed. Cas. 1028, 1030 (D. Pa. 1795) (holding the “laws of nations” binding).
The “framers drafted Article III[‘s provision about
admiralty jurisdiction] with this full body of maritime
law clearly in view,” a “venerable law of the sea” that
was “well-known and well-developed which arose from
the custom among ‘seafaring men,’” and applied “for
3,000 years or more.” R.M.S. Titanic, Inc. v. Haver,
171 F.3d 943, 960 (4th Cir. 1999). See also Am. Ins. Co.
v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 512 (1828)
(Marshall, C.J.,) (maritime jurisdiction is “as old as
navigation itself”),
Courts thus view maritime law as an amalgam of
federal statutory and common law that occasionally
uses the laws of states and, on rare occasions, of
24
foreign jurisdictions to fill its interstices. 14A Charles
Alan Wright & Arthur Miller, FED. PRAC. & PROC.
§ 3671.3 (4th ed.). Still, federal substantive law uniformly governs and defeats state or foreign legal interests that would otherwise require a departure from
the uniformity that it imparts. Norfolk S. Ry. Co. v.
Kirby, 543 U.S. 14, 27 (2004); see also Yamaha Motor
Corp., U.S.A. v. Calhoun, 516 U.S. 199, 210 (1996)
(“[I]n several contexts, we have recognized that vindication of maritime policies demanded uniform adherence to a federal rule of decision.”) (citations omitted)).
See generally 14A FED. PRAC. & PROC. § 3671.3 (“The
same concern about the uniformity of maritime law
that limits the application of state law also limits the
importance and applicability of foreign law sources.”).
Moreover, as opposed to other federal interests
governed by the Fifth Amendment, federal courts’ “inherent powers in admiralty” justify due process flexibility when applied to admiralty. Merchants Nat’l
Bank of Mobile v. Dredge Gen. G. L. Gillespie, 663 F.2d
1338, 1346 (5th Cir. 1981).
The bottom line is that our courts have recognized
exceedingly broad admiralty jurisdiction, covering any
action arising from torts committed upon “the high
seas or navigable waters.” Atl. Transp. Co. of W. Va. v.
Imbrovek, 234 U.S. 52, 59-60 (1914) (quoting The
Plymouth, 70 U.S. (3 Wall.) 20, 36 (1865)); see also 3
Joseph Story, COMMENTARIES ON THE CONSTITUTION
OF THE UNITED STATES §§ 1659, 1663 (1833) (admiralty
jurisdiction “extends to all acts and torts done upon
the high seas, and within the ebb and flow of the sea,”
including “cases of collision, or running of ships
25
against each other”). That broad authority includes
the tools necessary to effectuate it.
B. Most Circuits Erroneously Followed
Daimler to Change their Personal Jurisdiction Approach to Admiralty Cases.
Although nothing in Daimler suggested it was intended to overrule existing Fifth Amendment personal-jurisdiction decisions, courts nonetheless
largely changed their views. The Fifth Circuit abandoned its more generous approach in World Tankers
by adopting, without briefing on the subject, a more
restrictive approach in Patterson.
The Second Circuit, however, adheres to a more
traditional due-process test in admiralty cases alone,
as other circuits did pre-Daimler. Applying Rule
4(k)(2) in an admiralty case, it held that due process
was satisfied if the foreign defendant “has sufficient
affiliating contacts with the United States in general,”
and “whether the assertion of personal jurisdiction ‘is
reasonable under the circumstances of the particular
case.’” Porina, 521 F.3d at 127 (citation omitted). In
that case, the lawsuit concerned the sinking of a Latvian fishing vessel in Swedish waters in which all six
crew members perished after a collision with a Cypriot
cargo ship. Id. at 124. Neither Rule 4(k)(2) nor due
process was met because the defendant’s only U.S.
contacts were that the cargo ship, while chartered by
parties other than the defendant, had made repeated
visits to various U.S. ports. Id. at 128. More significant
contacts, as exist here, would have satisfied the Second Circuit’s maritime application of “general
26
jurisdiction.” Id. Courts within the Second Circuit continue to utilize the Porina test in admiralty. See BMW
of N. Am. LLC v. M/V Courage, 254 F. Supp. 3d 591,
599-600 (S.D.N.Y. 2017).
Similarly, the Ninth Circuit recognized that the
“longstanding custom in American admiralty law is
that courts have discretion to assert in personam jurisdiction in suits between foreign parties” in a case
where a Chinese company brought suit for a lost cargo
against a Chilean carrier. Complaint of Damodar Bulk
Carriers, Ltd., 903 F.2d 675, 678 (9th Cir. 1990). It
held that general jurisdiction exists in admiralty “over
a non-resident defendant [i]f the defendant’s activities
in the state are substantial or continuous and systematic, ... even if the cause of action is unrelated to those
activities.” Id. at 679 (quoting Haisten v. Grass Valley
Medical Reimbursement Fund, Ltd., 784 F.2d 1392,
1396 (9th Cir. 1986)) (cleaned up, footnote omitted).
In another lost cargo case, the Seventh Circuit affirmatively declared, anticipating the issue subsequently raised with respect to Rule 4(k)(2), that
“[w]hen a national court applies national law, the due
process clause requires only that the defendant possess sufficient contacts with the United States.”
United Rope Distributors, Inc. v. Seatriumph Marine
Corp., 930 F.2d 532, 534 (7th Cir. 1991).
In the case below and in Patterson, the Fifth Circuit alone has explicitly required the foreign defendant to be at home in the United States to establish personal jurisdiction in an admiralty case. Still, the implications in admiralty are significantly broader than
27
the number of collisions at sea between ships of different flags because it harms the international law canvas upon which admiralty jurisdictional issues are
painted, throws the constitutionality of DOHSA into
question because it depends on the same personal jurisdiction considerations, and warrants review in this
Court.
IV.
THE DECISION BELOW IS INCORRECT.
The Fifth Circuit held that the Fifth Amendment’s
Due Process Clause renders Rule 4(k)(2) either superfluous or useless. It cannot apply to general jurisdiction because no foreign defendant is at home here.
App. 3, 27 n.27. Instead, according to the majority,
Rule 4(k)(2) is a form of specific jurisdiction, which
would require that the incident took place inside the
United States and thus the defendant would be amenable to some state court’s jurisdiction, which contradicts the text of Rule 4(k)(2). 5
In the majority’s view, the Fifth and Fourteenth
Amendment’s Due Process Clauses exhibit no substantive differences: one simply applies to the federal
5 The majority below cited six cases where Rule 4(k)(2) was ap-
plied to specific jurisdiction. App.28. Yet, each involved a fact pattern where the foreign defendant purposely availed itself of activity within a state or states and would fall within a state longarm statute. The cited cases, were comparable with Fortis Corporate Ins. v. Viken Ship Mgmt., 450 F.3d 214 (6th Cir. 2006), where
the court applied Rule 4(k)(2) because the foreign shipowner had
sufficient contacts with Ohio, while denying that was the case. If
the contacts with Ohio sufficed, then Ohio’s long-arm statute, rather than Rule 4(k)(2) applied.
28
courts and one to state courts. App. 17. That is not correct.
It is true that, in either locus, due process’s “minimum contacts test secures defendants’ individual liberty by protecting them against (1) the concrete burden of ‘litigating in a distant or inconvenient forum,’”
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, 137
S. Ct. at 1781 (internal citation omitted). But by adding the at-home requirement, the majority ignored the
overriding interest of the United States in its military
personnel killed or injured through the negligence of
others while on the high seas in the service of their
country.
For these reasons, treating Rule 4(k)(2) as creating nothing more than a federal form of general or specific jurisdiction, rather than an independent congressionally authorized species of personal jurisdiction,
means that the rule accomplishes nothing other than
to add extraneous requirements. A plaintiff, then,
would be foolhardy in invoking Rule 4(k)(2) because it
would unnecessarily force the plaintiff to muster aggregate national contacts and deny state-court jurisdiction to no end when the defendant is at home in the
United States (meaning, a State), or has purposely
availed itself of the forum. The majority’s application
of due process to Rule 4(k)(2) would not even reach the
British party in Omni Cap., which the Rule was specifically drafted to reach. The Omni Cap. Court saw no
issue with exercising jurisdiction over that party,
29
provided there was a Rule or statute by which service
of process could be accomplished. 484 U.S at 106.
If Fifth Amendment due process requires a foreign
defendant to be essentially at home in the United
States, as the majority requires, and the language of
Rule 4(k)(2)(A) requires the defendant “not [be] subject to jurisdiction in any state’s court of general jurisdiction,” then due process renders Rule 4(k)(2) unconstitutional in all or nearly all applications, including
applications within the contemplation of its drafters.
The reflexive treatment of due process the same
way regardless of whether derived from the Fifth or
Fourteenth Amendment ignores the history and customary usage of due process that applies differently to
each. Due process cannot be “reduced to any formula”
or any “mechanical yardstick.” Poe v. Ullman, 367 U.S.
497, 542, 544(1961) (Harlan, J., dissenting from dismissal of appeals). Its “‘very nature . . . negates any
concept of inflexible procedures universally applicable
to every imaginable situation.’” Goss v. Lopez, 419 U.S.
565, 578 (1975) (quoting Cafeteria Workers v. McElroy,
367 U.S. 886, 895 (1961)).
Instead, a historical approach informs the analysis, just as it was used to find personal jurisdiction
over a transient presence in Burnham. There, recognizing a form of personal jurisdiction that is neither
specific nor general, Justice Scalia wrote that “tag” jurisdiction comported with “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.’” Id. at 619
30
(plurality op.). The assertion of judicial authority over
out-of-state persons just passing through a state was
also “[a]mong the most firmly established principles of
personal jurisdiction in American tradition.” Id. at
610.
The historical approach invoked in Burnham
helps shape the spacious concept of due process. At
least as early as 1855, this Court described the quest
for understanding due process as requiring a “look to
those settled usages and modes of proceeding existing
in the common and statute law of England, before the
emigration of our ancestors, and which are shown not
to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.” Murray’s Lessee v. Hoboken
Land & Imp. Co., 59 U.S. (18 How.) 272, 277 (1855);
see also Rochin v. California, 342 U.S. 165, 168 (1952)
(describing due process as “a historical product”) (citation omitted)).
Even Pennoyer v. Neff lodged its understanding of
due process in “those rules and principles which have
been established in our systems of jurisprudence for
the protection and enforcement of private rights.” 95
U.S. 714, 733 (1877), overruled in part by Shaffer v.
Heitner, 433 U.S. 186 (1977). See generally Thomas M.
Cooley, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF
THE STATES OF THE AMERICAN UNION 356 (1868).
Indeed, every exposition of due process in the context of personal jurisdiction looks to history and tradition to define its application. The seminal decision in
31
International Shoe Co. v. Washington defines the dueprocess inquiry in terms of “‘traditional notions of fair
play and substantial justice.’” 326 U.S. 310, 316 (1945)
(emphasis added) (quoting Milliken v. Meyer, 311 U.S.
457, 463 (1940) (emphasis added); Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)
(stating that “the interest of each state in providing
means to close trusts . . . is so insistent and rooted in
custom” that assertion of jurisdiction by state courts
to determine interests of nonresidents in trusts does
not violate due process) (emphasis added).
The upshot of this long line of due-process decisions is that practices settled under the common law
predating the Constitution comply with the requirements of due process. Those practices support providing defendants with adequate notice, id. at 320, an opportunity to be heard, Mathews v. Eldridge, 424 U.S.
319, 333 (1976), and a fair tribunal. In re Murchison,
349 U.S. 133, 136 (1955). The link between personal
jurisdiction and a “defendant’s ‘contacts’ with the forum developed in state litigation.” Bd. of Trustees,
Sheet Metal Workers’ Nat’l Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1036 (7th Cir. 2000). Similarly, the link between due process and personal jurisdiction was developed under state constitutions. See,
e.g., Ex parte Woods, 3 Ark. 532, 536-37 (1841) (articulating dicta that the state constitution’s “law of the
land” clause could restrict personal jurisdiction);
Beard v. Beard, 21 Ind. 321, 324 (1863).
New scholarship on the original public meaning of
Fifth Amendment due process as it relates to personal
jurisdiction confirms that personal jurisdiction was
32
achieved through validly authorized service of process.
See Max Crema & Lawrence B. Solum, The Original
Meaning of "Due Process of Law" in the Fifth Amendment, 108 Va. L. Rev. 447, 467 (2022). Thus, both English antecedents and understandings from the framing era establish that due process of law, as used in
the Fifth Amendment, only “forbids the federal government to deprive any person of life, liberty, or property if they have not been served process in accord
with the law.” Lawrence B. Solum & Max Crema,
Originalism and Personal Jurisdiction: Several Questions and a Few Answers, 73 Ala. L. Rev. 483, 524
(2022); see also Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703
(2020). The dissent below also provided an extensive
and unanswered originalist examination of the Fifth
Amendment’s applicability. App. 53-54, 61-79.
Useful insight is provided by early cases. In Picquet v. Swan, 19 F. Cas. 609 (C.C.D. Mass. 1828), Justice Story examined the extent of authority under the
Judiciary Act of 1789 to assert personal jurisdiction
over a non-inhabitant. He said that because “congress
never had any such intention” to extend process that
far, “no suit would lie against any person, who was not
locally present, either as an inhabitant, or in transitu
in the United States.” Id. at 613. However, if Congress
chose to expand service of process, there was no bar to
a federal court’s authority to have “a subject of England, or France, or Russia . . . summoned from the
other end of the globe to obey our process, and submit
to the judgment of our courts.” Id. Regardless of any
objections that might be mustered, a federal court
33
“would certainly be bound to follow it, and proceed
upon the law.” Id. at 614-15; see also Toland v. Sprague, 37 U.S. 300, 330 (1838) (adopting Picquet’s reasoning and holding that “positive legislation” could authorize process on non-inhabitants as long as it provides notice of suit). Authorized process of the kind
that Congress could, but had not yet undertaken, was
dubbed “legislative jurisdiction.” D'Arcy v. Ketchum,
52 U.S. (11 How.) at 176. Indeed, more recently, this
Court recognized that Congress could authorize personal jurisdiction where it does not presently exist.
Nicastro, 564 U.S. at 885; cf. Blackmer v. United
States, 284 U.S. 421, 438 (1932) (finding no Fifth
Amendment problem with a congressional enactment
that extended in personam jurisdiction over a U.S. citizen domiciled abroad as long as “appropriate notice of
the judicial action and an opportunity to be heard” occurred.
Applying that common-law usage, history and tradition to admiralty, it becomes clear that admiralty
courts exercised personal jurisdiction under the law of
nations for collisions at sea since before the nation’s
founding and before Pennoyer made due process a consideration for personal jurisdiction. Nothing in the law
or in precedent has rendered that exercise of personal
jurisdiction infirm. Thus, just as Burnham established
that tag or transient jurisdiction, as a continuous feature of American jurisprudence, comports with due
process, so the admiralty jurisdiction asserted here
must as well.
34
Indeed, a century ago, this Court held that “Congress has paramount power to fix and determine the
maritime law which shall prevail throughout the
country” and that “in the absence of some controlling
statute, the general maritime law, as accepted by the
Federal courts, constitutes part of our national law.”
Southern Pac. Co. v. Jensen, 244 U.S. 205, 215 (1917).
Thus, a congressionally authorized rule, such as Rule
4(k)(2), as well as the exercise of the federal courts’
common-law authority in maritime cases provide a
strong basis to demonstrate that the notice and opportunity to be heard that is at the heart of Fifth Amendment due process is satisfied.
As this Court recently recognized, admiralty courts
acted within an “‘enlarged and liberal jurisprudence of
courts of equity’” with “‘the power to . . . dispose of [a
case] as justice may require.’” The Dutra Grp. v. Batterton, 139 S. Ct. 2275, 2279 (2019) (quoting The Resolute, 168 U.S. 437, 439 (1897)). Relying on “medieval
and renaissance law codes that form the ancient foundation of maritime common law,” courts adopted an
approach that treated seamen as “emphatically the
wards of the admiralty” and entitled to enhanced judicial protections. Id. (quoting Harden v. Gordon, 11
F.Cas. 480, 485 (No. 6,047) (C.C.D. Me. 1823) and
Brown v. Lull, 4 F.Cas. 407, 409 (No. 2,018) (C.C.D.
Mass. 1836) (Story, J.).
In The Belgenland, 114 U.S. 355 (1885), this Court
opined, “where the parties are not only foreigners, but
belong to different nations, and the injury or salvage
service takes place on the high seas, there seems to be
no good reason why the party injured . . . should ever
35
be denied justice in our courts.” 95 U.S. at 68-69. After
all, “[m]aritime law has always recognized a ‘special
solicitude for the welfare’ of those who undertake to
‘venture upon hazardous and unpredictable sea voyages,’” Air & Liquid Sys., 139 S. Ct. at 995 (citation
omitted), and reflects admiralty law’s elevated responsibility “as ‘protector’ of seamen.” Coats v. Penrod
Drilling Corp., 61 F.3d 1113, 1125 (5th Cir. 1995).
It is also significant that the deaths and injuries
in this case took place on the U.S.S. Fitzgerald while
the victims served their country. The ship belongs to
the United States Navy and, more generally, the
United States. United States v. Conroy, 589 F.2d 1258,
1267 (5th Cir. 1979). Courts have long recognized the
principle that a ship belonging to the United States as
a sovereign is “deemed to be a part of the territory of
that sovereignty, and [does not] lose that character
when in navigable waters within the territorial limits
of another sovereignty.” United States v. Flores, 289
U.S. 137, 155-56 (1933) (citations omitted); see also
The Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch)
116, 144 (1812) (Marshall, C.J.) (describing a warship
as “part of the military force of her nation; acts under
the immediate and direct command of the sovereign;
is employed by him in national objects” and remains
within the sovereign’s jurisdiction even when within
another sovereign’s territory).
As such, the U.S.S. Fitzgerald was a projection of
U.S. sovereignty, and the collision with it was an intrusion upon U.S. territory. See Alexander Porter
Morse, The International Status of a Public Vessel in
Foreign Waters, 50 Albany L.J. 204, 205 (1894) (“the
36
ship is conceived as a portion of the floating sovereign
State, floating in the high sea or elsewhere”).
The interest of the United States as a sovereign,
historically as a measure of due process and practically as a projection of American interests and property around the world, is second to none in the dispute
before this Court. Plainly, U.S. interests here are predominant in the same way that the Court discussed
States having “significant interests at stake” in order
to provide their “‘residents with a convenient forum for
redressing injuries inflicted by out-of-state actors.’”
Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141
S. Ct. 1017, 1030 (2021) (quoting Burger King, 471
U.S. at 473). Denying a federal-court forum, on the
other hand, would impose the “unique burdens” of litigating in a “foreign legal system,” Asahi Metal, 480
U.S. at 114, where compensation would be paltry,
upon U.S. Navy sailors and their families, whose injuries and deaths are a result of service to this country,
as well as the United States for its claims of property
damage to the U.S.S. Fitzgerald.
The only proper measure of due process under
Rule 4(k)(2) is a national-contacts rule. Under that
rule, personal jurisdiction exists when a defendant
“has continuous and systematic contacts with the
United States as a whole” so that “subjecting [it] to
suit here does not offend notions of fair play and substantial justice.” Adams, 364 F.3d at 651-52 (citations
omitted).
Rule 4(k)(2) creates a constitutionally valid form
of congressionally endorsed personal jurisdiction that
37
is untethered to the artificial and less-than-comprehensive categories of specific or general jurisdiction.
The Fifth Circuit has, effectively, declared a congressionally authorized Rule to be unconstitutional in
virtually every case where it could be useful. It also
has raised serious constitutional doubts about the
reach of the Death on the High Seas Act. If the majority’s ruling that the Fifth and the Fourteenth Amendments are coterminus stands, it has called into question the validity of the many federal statutes that enable federal courts to adjudicate wrongs committed
outside the United States. For those reasons, this
Court should consider this to be a case in which the
constitutionality of a federal law is challenged and
therefore must provide notice to the Attorney General
under 28 U.S.C. 2403.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Robert S. Peck
Counsel of Record
CENTER FOR CONSTITUTIONAL LITIGATION, P.C.
1901 Connecticut Ave., NW
Suite 1008
Washington, DC 20009
Phone: (202) 944-2874
Fax: (646) 365-3382
robert.peck@cclfirm.com
38
Marc Fiedler
David M. Schloss
Kasey K. Murray
Koonz McKenney
Johnson & DePaolis
LLP
2001 Pennsylvania Ave.
N.W., Suite 530
Washington, DC 20006
Phone: (202) 659-5500
Thomas Schoenbaum, JD,
PH.D
2181 Jamieson Avenue
Suite 1409
Alexandria VA 22314
tjschoen@uw.edu
Counsel for Petitioners
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