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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APPENDIX

TABLE OF CONTENTS

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

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

App. 1

APPENDIX A

United States Court of Appeals

for the Fifth Circuit

No. 20-30382

[Filed: August 16, 2022]

________________________________________________

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

)

App. 2

NIPPON YUSEN KABUSHIKI KAISHA,

)

Defendant—Appellee,

)

________________________________________________)

CONSOLIDATED WITH

No. 20-30379

________________________________________________

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

ON PETITION FOR REHEARING EN BANC

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, D ENNIS,

App. 3

S OUTHWICK , H AYNES , C OSTA , H O , D UNCAN ,

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 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

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.

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).

App. 4

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 cargo damaged en route to the United

States or for injuries that occurred during cargo

operations in the United States.4

Id.

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.

See, e.g., Complaint at 1-5, Epperson v. NYK Line, No. 4:2019-cv5948 (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,

App. 5

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

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).

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.

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

Board, Marine Accident Report: Collision Between US Navy

App. 6

Fitzgerald’s 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.

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).

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.

App. 7

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 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)).

App. 8

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 Fourteenth Amendment personal

jurisdiction standards in Fifth Amendment cases would

render Rule 4(k)(2) a nullity.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).

App. 9

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-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

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.”).

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

App. 10

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 dueprocess-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

jurisdiction in any state’s courts of general jurisdiction;

judicial review of immigration decisions where Congress did not

statutorily provide such review. Id.

App. 11

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

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

App. 12

Civil Procedure, the 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

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 . . . .”).

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.”).

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 longarm statutes

after International Shoe).

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.”).

App. 13

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

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

App. 14

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 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)

App. 15

(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) 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

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.

App. 16

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

App. 17

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.

App. 18

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

Charter of individual liberty, Magna Carta.15

Individual liberty is what the Supreme 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.

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 Magna Carta.

Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18

How.) 272, 276 (1856).

App. 19

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 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

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 29394, 100 S. Ct. at 565-66.

Consider, for instance, the international comity concerns

implicated in this case. Under the plaintiffs’ theory, virtually every

App. 20

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 nonresident 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.

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

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.

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

App. 21

“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.

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).

App. 22

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

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).

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).

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

App. 23

Circuit has never found that a foreign corporation’s

contacts with the United States alone supported

general jurisdiction over unrelated lawsuits.22

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).

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).

App. 24

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 65152. 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 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

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.

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,

App. 25

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 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

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).

To be sure, the defendants in that case only raised the personaljurisdiction argument “as an aid in interpreting” FSIA’s directeffect 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.

App. 26

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

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.

App. 27

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 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

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”).

App. 28

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 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).

App. 29

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 86061. The federal courts exercised in rem jurisdiction over

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

marshal arrested the 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

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

App. 30

have confused personal jurisdiction with subject matter

jurisdiction, which the Supreme Court discussed in The

Belgenland. In sum, the plaintiffs’ proposed admiraltyexclusive 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

defendant’s relationship with the forum underlies the

general-specific jurisdiction dichotomy. See Goodyear,

564 U.S. at 919, 131 S. Ct. 2851.

Supreme Court linked personal jurisdiction with due process. As

explained above, however, the latter case did not impinge on

Pennoyer’s analysis.

App. 31

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

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).

App. 32

Consolidated Mining Co., 342 U.S. 437, 72 S. Ct. 413

(1952) remains the lodestar for such exceptional

circumstances. In Perkins, the defendant, 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

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).

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

App. 33

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 decisionmaking 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.

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

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.

App. 34

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.

App. 35

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

App. 36

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.

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.

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

App. 37

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, 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

App. 38

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).

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)

App. 39

(“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

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

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

App. 40

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,

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.

App. 41

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 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 nonoriginalist 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

App. 42

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 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

App. 43

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 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

App. 44

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 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

App. 45

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.

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

App. 46

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.

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

App. 47

due process under the Fourteenth Amendment.

Perhaps the Court will one day hold that fidelity to text

and original public meaning 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.

App. 48

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

Judge Higginson joins Part VI of this opinion. Judge Oldham

joins Parts II.B and VI of this opinion.

App. 49

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.

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.

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

App. 50

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.

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.

App. 51

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 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)).

App. 52

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 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

App. 53

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

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.”).

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

App. 54

strongly suggests that “‘due process of law’ has

undergone linguistic drift.” Max Crema & Lawrence B.

Solum, The Original Meaning of “Due Process of 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 corpuslinguistics 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 interstatefederalism principles baked into the Fourteenth

Amendment.3

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).

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).

App. 55

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 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

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.

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

App. 56

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 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

App. 57

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

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.

App. 58

borrow freely

jurisprudence.5

from

adjacent

Supreme

Court

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

“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.

App. 59

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 getgo.6 Indeed, the majority opinion could not meet its

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.

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

App. 60

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

App. 61

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.

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

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 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).

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.

App. 62

§ 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 2 Edward Coke,

Institutes of the Lawes of England 50 (1642)).8 Indeed,

the relationship between “law of the land” and “due

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”). Midnineteenth 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.

App. 63

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 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

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.

See Ryan C. Williams, The One and Only Substantive Due

Process Clause, 120 Yale L.J. 408, 428–34 (2010) (“[A]n eighteenthcentury 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 implies and

includes actor, reus, judex, regular allegations, opportunity to

answer, and a trial according to some settled course of judicial

proceedings . . . .”).

App. 64

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.

Id. at 234 (emphasis added). The sole dissenting

justice, Chief Justice Holt, did not disagree with this

App. 65

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

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.

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

App. 66

carried over into state constitutions,13 the Northwest

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

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)).

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,

App. 67

Ordinance,14 and eventually, the Fifth Amendment to

the federal Constitution.15

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”).

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)).

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 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).

App. 68

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.

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, refused to

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.

App. 69

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

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”).

App. 70

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 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

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 nighttime”).

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)).

App. 71

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 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

App. 72

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 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

App. 73

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.

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 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

App. 74

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

App. 75

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

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],

App. 76

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.

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.

The majority opinion hopscotches right over all this

history, leaping from Runnymede in 1215 A.D. straight

App. 77

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 at 14–15. As the majority

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. 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,

App. 78

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 the more recent

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).

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.”).

App. 79

Fourteenth Amendment is to put new wine in an old

wineskin.22

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

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”).

Cf. Xitronix Corp. v. KLA-Tencor Corp., 916 F.3d 429, 442–43

(5th Cir. 2019) (Higginson, J.) (observing that although “the

App. 80

its progeny are concerned not only with due process

generally, but also with principles of interstate

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 WorldWide Volkswagen, 444 U.S. at 293)).25 To prevent

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).

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[.]”).

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.’”

App. 81

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 what matters, ultimately, is

(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 . . . .”).

The United States, intervening in a case pending in the Second

Circuit, very recently put it this way:

[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, 22496).

App. 82

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 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

App. 83

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

Amendment, unlike the Fourteenth Amendment,

App. 84

applies to federal courts and is not shaped by principles

of federalism, it poses no barrier.

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. VerdugoUrquidez, 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

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

App. 85

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. 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

that Johnson “reject[ed] extraterritorial application of the Fifth

Amendment”).

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,’

App. 86

liberty interest that the majority opinion expounds is

substantive in character. Ante at 8, 24 (concluding that

nonresident, non-consenting defendants have a libertybased 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 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

have in this country become ‘bulwarks also against arbitrary

legislation.’” (quoting Poe v. Ullman, 367 U.S. 497, 541 (1961)

(Harlan, J., dissenting))).

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.”).

App. 87

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,

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).

App. 88

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 law in this area is highly factspecific,31 and the Supreme Court itself has recognized

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 sovereignty of each State . . . implie[s] a limitation on

the sovereignty of all its sister States . . . .”). Scholars too have

puzzled over the exact nature of the right that the Court’s

twentieth-century Fourteenth Amendment jurisprudence has

wrought. See, e.g., Perdue, Sin, Scandal, and Substantive Due

Process, supra, at 511–19; Conison, supra, at 1187–1203.

See, e.g., Polythane Sys. v. Marina Ventures Int’l, Ltd., 993 F.2d

1201, 1207 (5th Cir. 1993) (“Determinations regarding the exercise

App. 89

that delimiting defendants’ “liberty interest[s]” vis-àvis personal jurisdiction “necessarily requires

determinations ‘in which few answers will be written in

black and white. The greys are dominant and even

among them the shades are innumerable.’” Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 471, 486 n.29 (1985)

(quoting Kulko v. Super. Ct. of Cal., 436 U.S. 84, 92

(1978)). It can hardly be said, therefore, that the right

of immunity that the majority opinion inserts into the

Fifth Amendment is clearly delimited.

The bigger problem for the majority opinion,

though, is Glucksberg’s central requirement that newly

posited substantive due process rights be objectively

deeply rooted in our Nation’s history and traditions.

521 U.S. at 720–21. As already discussed at length,

supra sections II.A–B, longstanding English and

antebellum American legal history show that “due

process of law” was not considered to impose

substantive limits on the legislative body’s ability to

expand or contract courts’ jurisdiction. Rather,

centuries of tradition appear to support the view that

even the most “repugnant” exercise of jurisdiction over

defendants halfway across the globe could very well be

authorized by Congress. See Picquet, 19 F. Cas. at 613.

While there is, of course, a considerable tradition

of personal jurisdiction over non-resident defendants must be

made on a case-by-case basis.”); Walker v. Newgent, 583 F.2d 163,

168 (5th Cir. 1978) (“Of necessity, inquiries into whether the

exercise of personal jurisdiction is permissible in a particular case

are sensitive to the facts of each case.”); accord uBID, Inc. v.

GoDaddy Group, Inc., 623 F.3d 421, 433 (7th Cir. 2010) (“[T]his is

a field of law where the Supreme Court has repeatedly refused

opportunities to draw such bright lines.”).

App. 90

rooted in natural law and the law of nations against

expansive extraterritorial exercises of jurisdiction, it is

not the role of the federal judiciary to constitutionalize

such under the auspices of ‘due process.’32

Emphasizing defendants’ “individual liberty”

interests, ante at 14–17, raises another big problem for

the majority opinion: Both historically and to the

present day, foreign criminal defendants have been

subjected to federal courts’ jurisdiction for crimes

committed abroad. This, despite the fact that criminal

defendants, whose liberty—and very lives—are on the

line, are always entitled to the very strictest due

process rights. See infra section IV.D.1. The majority

opinion wholly neglects to explain why it elevates

foreign civil defendants above criminal defendants for

special due-process solicitude in this context.

Since at least the seventeenth century, English and

early American jurisprudence has expressly allowed

criminal prosecutions of foreign actors for foreign

conduct in domestic courts. In the 1820 case of United

States v. Smith, Justice Story considered English

criminal prosecutions from the late 1690s and early

1700s to be “entitled to great consideration” because of

the “universal approbation of the legal principles

Contra Lea Brilmayer, Jurisdictional Due Process and Political

Theory, 39 U. Fla. L. Rev. 293, 313 (1987) (noting the dubious

judicial “legitimacy of relying upon natural law arguments” to

support limits on personal jurisdiction, but suggesting that they

might instead, “with some plausibility, be attributed to the

constitutional text,” which is “after all, . . . rather vague”).

App. 91

asserted by them.” 18 U.S. (5 Wheat.) 153, 177–80 n.h

(1820) (citing Rex v. Dawson, 13 How. St. Tr. 451,

454–55 (1696), and Rex v. Kidd, 14 How. St. Tr. 123,

147, 180–83 (1701)). Notably, he found it “worthy of

remark, that in none of these indictments was there

any averment that the prisoners were British subjects;

and most of them were for piracies committed on

foreign subjects and vessels.” Id. (emphases added).33

In other words, there was no jurisdictional problem

with prosecuting possible foreigners in domestic court

for foreign conduct that injured other foreigners. Even

when nothing about the criminal, the crime, or the

victim has anything to do with the forum, English

courts could hear and adjudicate the prosecutions. Due

process interposed no jurisdictional barrier.

In contemporary due process jurisprudence, we and

our sister circuits merely require that when the United

States prosecutes a non-citizen for foreign conduct

there must be “a sufficient nexus between the conduct

condemned and the United States” such that it “would

not be arbitrary or fundamentally unfair” for our courts

to enter judgment against the defendant. See United

States v. Rojas, 812 F.3d 382, 393 (5th Cir. 2016)

(quoting United States v. Lawrence, 727 F.3d 386, 396

(5th Cir. 2013)); Restatement (Fourth) of Foreign

Indeed, in the cited 1696 English case of Rex v. Dawson, the jury

instructions of the presiding Sir Charles Hedges, the Judge of the

High Court of Admiralty, indicated that the extraterritorial piracy

prosecution was “cognizable of th[at] Court” because “[t]he King of

England hath not only an empire and sovereignty over the British

seas” for “the punishment of piracy,” but also “an undoubted

jurisdiction and power” in “the most remote parts of the world.” 13

How. St. Tr. at 455.

App. 92

Relations Law § 403(c) & n.4 (2018) (citing sister circuit

cases). And “a jurisdictional nexus exists when the aim

of that activity”—or perhaps merely its effect—“is to

cause harm inside the United States or to U.S. citizens

or interests.” See id. (quoting United States v. Al

Kassar, 660 F.3d 108 (2d Cir. 2011)); United States v.

Murillo, 826 F.3d 152, 157 (4th Cir. 2016) (“[I]t is not

arbitrary to prosecute a defendant in the United States

if his ‘actions affected significant American interests’—

even if the defendant did not mean to affect those

interests.” (quoting United States v. Brehm, 691 F.3d

547, 552–53 (4th Cir. 2012))).

So, even though due process today places more

limits perhaps on federal courts’ criminal jurisdiction

than there were historically, this “more expansive due

process test in criminal cases” is hardly as constraining

as the test that the majority opinion today demands in

the civil context. Waldman v. Palestine Liberation Org.,

835 F.3d 317, 340 (2d Cir. 2016). Thus, our sister

circuits have unhesitatingly affirmed convictions in

federal district court of Somali pirates for murders

committed some thirty nautical miles off the Somali

coast, a Spanish illegal weapons trafficker for deals

brokered in Spain and Beirut, a Colombian taxicab

driver for murdering an undercover American DEA

special agent in Bogotá, and a leader of an extensive

international criminal drug enterprise for funding

terrorism—among others. See, e.g., United States v.

Beyle, 782 F.3d 159, 165–69 (4th Cir. 2015) (opinion of

Wilkinson, J.); Al Kassar, 660 F.3d at 117–20 (opinion

of Jacobs, C.J.); Murillo, 826 F.3d at 153–54, 156–57;

App. 93

In re Sealed Case, 936 F.3d 582, 593–94 (D.C. Cir.

2019) (opinion of Griffith, J.).34

The bottom line is this: We can prosecute foreign

pirates, arms traffickers, murderers, and terrorists in

our federal courts for criminal conduct abroad; we can

condemn them to life imprisonment; we can sentence

them even to death; but we cannot, on the majority

opinion’s reasoning, subject them to civil suit in United

States federal courts without violating due process

unless they are “at home” here (or the lawsuit arises

out of their purposeful “minimum contacts” with the

United States). It is nonsense on stilts to hold that

allowing a civil lawsuit against a foreign defendant for

foreign conduct violates due process but that a criminal

prosecution against the same defendant for the same

foreign conduct does not. The Fifth Amendment does

not compel us to pronounce such absurdity. As

originally and subsequently understood, its Due

Process Clause imposes no stricter limit on personal

jurisdiction in civil cases than it does in criminal

prosecutions; indeed, it imposes no limit on Congress’s

ability to extend the range of federal courts’ civil

process. See supra sections II.A–B.

That the Fifth Amendment’s Due Process Clause, as

originally understood, imposes no direct constraint on

Congress’s ability to demarcate the extent of federal

See also, e.g., United States v. Shibin, 722 F.3d 233 (4th Cir.

2013); United States v. Dire, 680 F.3d 446 (4th Cir. 2012); Brehm,

691 F.3d at 552–54; United States v. Ali, 718 F.3d 929, 944–47

(D.C. Cir. 2013).

App. 94

courts’ power is not necessarily to say that it imposes

no constraints whatsoever. Indeed, the Due Process

Clause secures individual liberty not just by requiring

that “courts have jurisdiction, period.” Sachs,

Unlimited Jurisdiction, supra, at 1712 (emphasis

removed); supra n.20. In my view, it also ensures the

rule of law more broadly by guarding against arbitrary,

capricious, and ad hoc government action.

In the context of personal jurisdiction, arbitrary

modes of process or nefarious allocations of judicial

authority designed to frustrate notice and fair hearing

would certainly violate the Due Process Clause. See

Sachs, Unlimited Jurisdiction, supra, at 1740. Take the

fair-hearing requirement, for example. “Congress could

violate the due process clause by requiring all federal

cases to be tried in Adak (the westernmost settlement

in the Aleutian Islands),” because the arbitrarily

distant forum “make[s] the offer of adjudication a

mirage.” Bd. of Trs., Sheet Metal Workers’ Nat. Pension

Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1036 (7th

Cir. 2000) (Easterbrook, J.).

Now consider the fair notice requirement. Imagine

a hypothetical Rule 4(k)(3), which says: “Constructive

service of process by posting a complaint and summons

in pig Latin on the Court-House door on the island of

Tobago establishes personal jurisdiction over any

named defendant in any federal district court.” This too

would obviously founder on Fifth Amendment due

process grounds. See Potter v. Castle Const. Co., 355

F.2d 212, 215 (5th Cir. 1966) (“[D]ue process under the

Fifth Amendment . . . [requires] ‘notice reasonably

calculated, under all the circumstances, to apprise

App. 95

interested parties of the pendency of the action and

afford them an opportunity to present their objections.’”

(quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339

U.S. 306, 314–315 (1950))).

III.

What does the original understanding of the Fifth

Amendment’s Due Process Clause mean for these cases

before us? The answer is really quite simple: the

plaintiffs’ cases should go forward. Because the Fifth

Amendment’s Due Process Clause, as originally

understood, poses no extrinsic limit on Congress’s

ability to authorize expansive personal jurisdiction in

federal courts, the district court had personal

jurisdiction over NYK pursuant to Rule 4(k)(2).35

The majority opinion instead holds that the Fifth

Amendment protects corporate defendant NYK against

the “concrete burden of ‘litigating in a distant or

inconvenient forum’ and the abstract burden of

‘submitting to the coercive power of a [forum] that may

have little legitimate interest in the claims in

question.” Ante at 15 (quoting Fourteenth Amendment

cases World-Wide Volkswagen, 444 U.S. at 291, and

Bristol-Myers, 137 S. Ct. at 1781). Even if, arguendo,

we were to accept as true the existence of these

Incidentally, the majority opinion quotes with approval the D.C.

Circuit’s suggestion that “[a]pplying consistent personaljurisdiction standards under the Fifth and Fourteenth

amendments is . . . easier to administer.” Ante at 20–21 (quoting

Livnat v. Palestinian Auth., 851 F.3d 45, 55–56 (D.C. Cir. 2017)).

Easier still, I would suggest, is simply applying the Fifth

Amendment as originally understood.

App. 96

substantive due process rights, in what way does

litigating in the United States burden NYK? Put

another way, how has NYK’s liberty actually been

impinged?

Recall that NYK is a massive multinational

corporation—one of the largest shipping and logistics

companies in the world. And like any modern

multinational conglomerate, NYK is the consummate

cosmopolitan: the world

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