Amicus Curiae Brief — Stephen Douglass, Individually and as Personal Representative of the Estate of Shingo Alexander Douglass, et al., Petitioners v. Nippon Yusen Kabushki Kaisha

No. 22-562

In the Supreme Court of the United States

_______________

STEPHEN DOUGLASS, ET AL., PETITIONERS,

v.

NIPPON YUSEN KABUSHIKI KAISHA.

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

BRIEF OF U.S. TERROR VICTIMS

AS AMICI CURIAE SUPPORTING RESPONDENT

_______________

ALLON KEDEM

DIRK C. PHILLIPS

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave.

Washington, DC 20001

(202) 942-5000

KENT A. YALOWITZ

Counsel of Record

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

(212) 836-8344

kent.yalowitz@arnoldporter.com

Counsel for the Sokolow and Fuld Amici

(counsel continued on inside cover)

RICHARD D. HEIDEMAN

NOEL J. NUDELMAN

TRACY REICHMAN KALIK

HEIDEMAN NUDELMAN

& KALIK, PC

5335 Wisconsin Avenue

Suite 440

Washington, DC 20015

(202) 463-1818

JEFFREY FLEISCHMANN

LAW OFFICE OF JEFFREY

FLEISCHMANN, P.C.

150 Broadway

Suite 900

New York, NY 10038

(646) 657-9623

STEVEN R. PERLES

SAMUEL SILVERMAN

PERLES LAW FIRM, P.C. THE SILVERMAN LAW FIRM

816 Connecticut Ave., NW PLLC

12th Floor

16 Squadron Boulevard

Washington, DC 20006

New City, NY 10956

(202) 955-9055

(845) 517-0351

Counsel for the Klieman

Amici

Counsel for the Fuld Amici

TABLE OF CONTENTS

Page

Interest of Amici.................................................................. 1

Summary of Argument ........................................................ 2

Argument .............................................................................. 5

Conclusion ........................................................................... 14

(I)

TABLE OF AUTHORITIES

Cases ............................................................................ Page(s)

Arizona v. United States,

567 U.S. 387 (2012) .......................................................... 12

Bristol-Myers Squibb Co. v. Superior

Court of Cal.,

137 S. Ct. 1773 (2017) ...................................................... 12

Daimler AG v. Bauman,

571 U.S. 117 (2014) .......................................................... 13

Dennis v. JPMorgan Chase & Co.,

343 F. Supp. 3d 122 (S.D.N.Y. 2018) ............................... 9

EEOC v. Arabian Am. Oil Co.,

499 U.S. 244 (1991) .......................................................... 13

Ford Motor Co. v. Montana Eighth Judicial

Dist. Ct.,

141 S. Ct. 1017 (2021) ...................................................... 12

FrontPoint Asian Event Driven Fund,

L.P. v. Citibank, N.A.,

No. 16-cv-5263 (AKH), 2017 WL 3600425

(S.D.N.Y. Aug. 18, 2017) ................................................... 9

Fuld v. Palestine Liberation Org.,

578 F. Supp. 3d 577 (S.D.N.Y. 2022) ............................... 2

Gamble v. United States,

139 S. Ct. 1960 (2019) ...................................................... 13

Healy v. Beer Inst., Inc.,

491 U.S. 324 (1989) .......................................................... 12

J. McIntyre Mach., Ltd. v. Nicastro,

564 U.S. 873 (2011) .......................................................... 11

Jesner v. Arab Bank, PLC,

138 S. Ct. 1386 (2018) ...................................................... 13

(II)

III

Cases (continued) ........................................................ Page(s)

Kiobel v. Royal Dutch Petroleum Co.,

569 U.S. 108 (2013) .......................................................... 13

Klieman v. Palestinian Auth.,

923 F.3d 1115 (D.C. Cir. 2019) ...................................... 8-9

Klieman v. Palestinian Auth.,

140 S. Ct. 2713 (2020) .................................................... 2, 9

Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) .......................................................... 14

Livnat v. Palestinian Auth.,

851 F.3d 45 (D.C. Cir. 2017) ............................................. 9

In re Platinum & Palladium Antitrust Litig.,

No. 14-cv-9391 (GHW), 2017 WL 1169626

(S.D.N.Y. Mar. 28, 2017) ................................................... 9

Prime Int’l Trading, Ltd. v. BP P.L.C.,

784 F. App’x 4 (2d Cir. 2019) ............................................ 9

Relevent Sports, LLC v. U.S. Soccer Fed’n, Inc.,

No. 19-cv-8359 (VEC), 2020 WL 4194962

(S.D.N.Y. July 20, 2020).................................................... 9

Rogers v. Tennessee,

532 U.S. 451 (2001) .......................................................... 14

Shatsky v. Palestine Liberation Org.,

955 F.3d 1016 (D.C. Cir. 2020) ......................................... 8

Sokolow v. Palestine Liberation Org.,

140 S. Ct. 2714 (2020) ........................................................ 2

Sonterra Cap. Master Fund Ltd. v. Credit

Suisse Grp. AG,

277 F. Supp. 3d 521 (S.D.N.Y. 2017) ............................... 9

Spetner v. Palestine Inv. Bank,

495 F. Supp. 3d 96 (E.D.N.Y. 2020)................................. 9

In re SSA Bonds Antitrust Litig.,

420 F. Supp. 3d 219 (S.D.N.Y. 2019) ............................... 9

IV

Cases (continued) ........................................................ Page(s)

United States ex. rel. TZAC, Inc. v. Christian Aid,

No. 17-cv-4135 (PKC), 2021 WL 2354985

(S.D.N.Y. June 9, 2021) ..................................................... 9

United States ex. rel. TZAC, Inc. v. Christian Aid,

No. 21-1542, 2022 WL 2165751

(2d Cir. June 16, 2022) ...................................................... 9

United States v. Pink,

315 U.S. 203 (1942).................................................... 12

Constitution, Statutes & Rules

U.S. Constitution

Art. I, § 8 .......................................................................... 12

Art. I, § 10 ................................................................ 12

Art. II, § 2 ................................................................ 12

Art. IV, § 4 ............................................................... 12

Amend IV ................................................................ passim

Amend. V ................................................................. passim

18 U.S.C. § 2333 .................................................................. 10

18 U.S.C. § 2334 ................................................................ 2, 9

Anti-Terrorism Act of 1992,

Pub. L. No 102–572, tit. X, 101 Stat. 1406 ...................... 1

Justice Against Sponsors of Terrorism Act,

Pub. L. 114–222, 130 Stat. 852 ....................................... 10

Promoting Security and Justice for Victims

of Terrorism Act of 2019,

Pub. L. No. 116–94, div. J, tit. IX, § 903 ................... 2, 10

Rules Enabling Act,

28 U.S.C. § 2072 ...................................................... passim

Fed. R. Civ. P. 4(k) ..................................................... 2, 6, 10

V

Other Authorities ........................................................ Page(s)

Max Crema & Lawrence B. Solum,

The Original Meaning of “Due Process

of Law” in the Fifth Amendment,

108 Va. L. Rev. 447 (2022) .............................................. 13

Restatement (Third) of the Foreign

Relations Law of the United States

§ 403 (2018)....................................................................... 13

Stephen E. Sachs, The Unlimited

Jurisdiction of the Federal Courts,

106 Va. L. Rev. 1703 (2020) ................................. 10-11, 13

U.S. Br., Mallory v. Norfolk Southern Ry.,

No. 21-1168 (Sept. 2022) ............................................ 11-12

U.S. Br., Ford Motor Co. v. Montana

Eighth Judicial Dist. Ct.,

141 S. Ct. 1017 (2021) ...................................................... 12

Wendy Collins Perdue, Aliens, the

Internet, and “Purposeful Availment”:

A Reassessment of Fifth Amendment

Limits on Personal Jurisdiction,

98 Nw. U. L. Rev. 455 (2004) .......................................... 13

INTEREST OF AMICI1

Amici are U.S. nationals prosecuting claims under

the Anti-Terrorism Act of 1992 (ATA) against the Palestine Liberation Organization (PLO) and the Palestinian

Authority (PA) for death and injury in terror attacks organized, financed, and perpetrated by the PLO and PA’s

officers and agents.2

Amici have an interest in ensuring that their ATA

claims—which arise under federal law and were brought

in federal courts—are adjudicated on the merits. Congress’s power to authorize a federal court to exercise

personal jurisdiction over foreign defendants such as the

PLO and PA should not be geographically constrained in

Counsel of record for all parties received timely notice of the intent to file this brief. No party or counsel for a party made a monetary contribution to the preparation or submission of this brief. All

parties consented to the filing of the brief. No counsel for a party

authored this brief in whole or in part.

1

Amici are: Katherine Baker, Alan Bauer, Binyamin Bauer, Daniel Bauer, Revital Bauer, Yehonathon Bauer, Yehuda Bauer, Rebekah Blutstein, Doctor Richard Blutstein, Doctor Larry Carter, Shaun

Coffel, Robert L Coulter, Jr., Robert L. Coulter, Sr., Chana Bracha

Goldberg, Eliezer Simcha Goldberg, Esther Zahava Goldberg, Karen Goldberg, Shoshana Malka Goldberg, Tzvi Yehoshua Goldberg,

Yaakov Moshe Goldberg, Yitzhak Shalom Goldberg, Elise Janet

Gould, Ronald Allan Gould, Shayna Eileen Gould, Nevenka Gritz,

Norman Gritz, Oz Joseph Guetta, Varda Guetta, Leonard Mandelkorn, Nurit Mandelkorn, Shaul Mandelkorn, Dianne Coulter Miller,

Jessica Rine, Elana R. Sokolow, Jamie A. Sokolow, Lauren M.

Sokolow, Mark I. Sokolow, Rena M. Sokolow, Eva Waldman, Henna

Novack Waldman, Morris Waldman, and Shmuel Waldman (collectively the Sokolow Amici); Miriam Fuld, Natan Shai Fuld, Naomi

Fuld, Tamar Gila Fuld, and Eliezer Yakir Fuld (collectively the

Fuld Amici); and Estate of Esther Klieman, by and through its administrator Aaron Kesner, Nachman Klieman, Ruanne Klieman,

Dov Klieman, Yosef Klieman, and Gavriel Klieman (collectively the

Klieman Amici).

2

2

the way that the Fourteenth Amendment constrains the

exercise of personal jurisdiction by particular States.

Amici also have an interest in ensuring that any standard for evaluating the exercise of personal jurisdiction

under the Fifth Amendment leaves ample room for the

political branches in their assessment of foreign policy

and national security—areas in which they exercise exclusive control and merit special deference.

In 2019, Congress enacted a statute for the purpose

of facilitating personal jurisdiction in certain ATA cases,

the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA) (codified at 18 U.S.C.

§ 2334(e)). The PSJVTA links personal jurisdiction in

ATA cases to conduct by the PLO and PA that is of obvious and important interest to the United States: conducting activities within the United States; and making

payments to terrorists who killed or injured Americans.

18 U.S.C. § 2334(e)(1). The PLO and PA have challenged

the PSJVTA’s constitutionality, including in cases in

which amici are parties. See Sokolow v. PLO, 140 S. Ct.

2714 (2020) (GVR for further consideration in light of the

PSJVTA); Klieman v. PA, 140 S. Ct. 2713 (2020) (same);

Fuld v. PLO, 578 F. Supp. 3d 577 (S.D.N.Y. 2022), appeal pending, No. 22-76 (2d Cir.).

SUMMARY OF ARGUMENT

1. The questions presented in the Petition concern

the exercise of general personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2) in an admiralty case

arising outside the United States against a foreign defendant. The court of appeals determined that a federal

court may not exercise jurisdiction over petitioners’

claims because they do not arise from or relate to respondent’s business activities in the United States and

because respondent was not “at home” in the United

States.

3

In so ruling, the court of appeals avoided deciding a

different, recurring, and far more important question:

whether the Fifth Amendment imposes a geographic restriction on Congress’s power to authorize federal courts

to exercise personal jurisdiction in cases arising under

federal law. In fact, the court of appeals went out of its

way to distinguish the situation before it—which involved an assertion of jurisdiction under a Federal Rule

of Civil Procedure—from a case in which Congress has

enacted a statute providing for the exercise of personal

jurisdiction by a federal court for the purpose of carrying

into execution the United States’ unique authority over

foreign relations or national security. Pet. App. 9 n.8, 20.

The parties did not brief that issue; and the Government,

although invited to participate, declined the invitation.

Five dissenters concluded that the Fifth Amendment

“imposes no limit on Congress’s ability to extend the

range of federal courts’ civil process.” Id. at 93 (emphasis

in original).

2. In an appropriate case, this Court should decide

whether the Fifth Amendment’s Due Process Clause

permits federal courts to exercise personal jurisdiction

authorized by a federal statute over a foreign defendant

whose conduct harms U.S. citizens or U.S. interests outside the United States. The question is exceptionally important, because many federal statutes authorize such

jurisdiction in order to advance the federal government’s

unique interests as the national sovereign.

However, this case does not present a good vehicle

for deciding that question. The parties did not brief it in

the district court, the court of appeals, or the Petition;

the Government did not participate below; neither the

parties nor the court of appeals sussed out the applicable

federal interests; and the issue is made more complex by

the intermediation of the Rules Enabling Act.

4

An opportunity for the Court to consider this important issue may soon arise. Amici and other plaintiffs

are currently litigating the personal-jurisdiction issue in

cases arising under federal anti-terrorism statutes that

expressly permit the exercise of personal jurisdiction

over foreign defendants based on their conduct abroad in

order to promote U.S. national security and foreign policy. The United States has intervened in several of these

cases to defend the constitutionality of these statutes. In

Fuld v. Palestine Liberation Organization, No. 22-76

(2d Cir.), this issue has been presented squarely and has

been fully briefed by all parties, including the United

States.

Those cases are better vehicles than this one for deciding the important and recurring issue: The Government and the parties have fully briefed the relevant governmental interests; the limits imposed by the Rules

Enabling Act are not implicated in those cases; and the

holding sought by the Government and the plaintiffs in

those cases is an incremental one, rather than one that

tests the outer limits of the Fifth Amendment, as the

dissent’s position did in this case.

3. The Fifth Amendment imposes no geographic limitations on the power of Congress to authorize the exercise of personal jurisdiction in furtherance of legitimate

federal interests. As this Court has instructed, considering whether the exercise of personal jurisdiction over a

defendant comports with due process requires careful

attention to the particular sovereign interests at stake.

The United States, as the national sovereign, plays a

special role within our constitutional system. And federal

assertions of personal jurisdiction over a foreign defendant—unlike State assertions of jurisdiction over an outof-state defendant—do not infringe the interests of any

other sovereign within our constitutional framework.

5

Treating the Fifth Amendment standards as imposing a

geographic restriction on the United States would improperly constrain enforcement of federal policy against

foreign defendants who violate federal law abroad, where

Congress has determined that such enforcement furthers federal interests.

In cases governed by the Fifth Amendment, instead

of applying geographic limitations (as are imposed on the

several States), the Court should judge assertions of

personal jurisdiction by asking whether the defendant

has received fair warning and whether the exercise of

jurisdiction reasonably advances legitimate governmental interests in the context of our federal system, as the

courts of appeals unanimously do in criminal cases. The

Fifth Amendment’s limitations on the exercise of jurisdiction over defendants by federal courts in federal cases

are satisfied if the defendant has received fair warning

that particular conduct may subject it to the jurisdiction

of the United States and if the exercise of such jurisdiction reasonably advances legitimate federal interests,

regardless of the geographic location of the conduct.

ARGUMENT

The Court should deny the petition. The Fifth Circuit majority carefully avoided deciding the important

and recurring question whether the Fifth Amendment

bars personal jurisdiction when Congress has authorized,

by statute, the exercise of personal jurisdiction over disputes arising abroad in order to advance federal interests. Because this case involves an assertion of jurisdiction under a Federal Rule of Civil Procedure, any

constitutional question would be complicated by the confounding issue of whether the Rules Enabling Act imposes limits on the rulemaking power to provide for personal jurisdiction. In addition, the federal interests

relevant to the due process inquiry were not briefed or

6

addressed in the lower courts, and the United States declined to participate. Other cases on the horizon are superior vehicles, compared to this case, for deciding the

Fifth Amendment question: They sharply present the

federal interests at stake; the United States has participated in briefing those interests in the lower courts; the

cases do not implicate the Rules Enabling Act; and the

holding sought by the Government and the plaintiffs in

those cases is an incremental one, rather than one that

tests the outer limits of the Fifth Amendment.

1. The two questions presented in the Petition concern the exercise of personal jurisdiction under Federal

Rule of Civil Procedure 4(k)(2) in an admiralty case. Rule

4(k)(2) applies only where, as here, no federal statute authorizes the exercise of personal jurisdiction. Cf. Fed. R.

Civ. P. 4(k)(1)(C) (establishing jurisdiction via service

“authorized by a federal statute”). In that context, the en

banc majority determined that the district court lacked

jurisdiction over petitioners’ claims because they do not

arise from or relate to respondent’s business activities in

the United States and because respondent was not “at

home” here. Pet. App. 14, 33-34. The court rejected petitioners’ arguments that declining to exercise general jurisdiction in such a case would render Rule 4(k)(2) a nullity and that “the unique nature of admiralty and

maritime law enhances the application of Rule 4(k)(2)”

because admiralty is “different from most other categories of U.S. law.” CA5 Br. for Appellants at 13, 23-24

(Sept. 21, 2020). The Petition asks this Court to take up

those questions.

In its ruling, the majority was careful to distinguish

the case before it, which implicated jurisdiction based on

service under a Federal Rule of Civil Procedure, from

cases raising a sharper and narrower question: whether

the Fifth Amendment can bar personal jurisdiction when

7

Congress has authorized the exercise of personal jurisdiction over disputes arising abroad in order to advance

federal interests. As the majority explained:

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. * * *

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.

Pet. App. 8 n.8 (emphasis in original). The court said that

the exercise by a federal court of “coercive power over a

foreign nonresident defendant” would “offend Fifth

Amendment due process when the relationship among

the defendant, the United States, and the litigation is insufficient,” but emphasized that “the impact of foreign

relations and national security surely can affect the

United States’ ‘sovereign reach’ in ways irrelevant to

this case.” Id. at 20.

In her thorough and scholarly lead dissenting opinion, Judge Elrod focused not on whether the exercise of

personal jurisdiction would reasonably advance an identified federal interest, but on the broader question

whether the Fifth Amendment imposes any restriction

even in the absence of legislative specification of a federal interest, ultimately concluding that “it imposes no limit on Congress’s ability to extend the range of federal

8

courts’ civil process,” with the exception of requiring fair

warning. Id. at 93-94 (emphasis in original).

Thus, neither the majority nor the dissent evaluated

whether the exercise of personal jurisdiction in this case

would reasonably advance a legitimate governmental interest in the context of our federal system. Compare id.

at 9 n.8 (“we cannot analyze this theory because the dissent posits no rule or limits flowing from the Fifth

Amendment”), with id. at 48 (“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.”). Judge Elrod’s dissent asserted that the Rules Enabling Act

supports the exercise of personal jurisdiction, Id. at 5961 n.6, but the majority did not address this question.

2. The question avoided by the court of appeals majority—whether the Fifth Amendment imposes a geographic restriction on the power of Congress to authorize a federal court to exercise personal jurisdiction in a

federal case—is one of exceptional importance and recurring interest. In many cases, lower courts have conflated the Fifth Amendment and Fourteenth Amendment jurisprudence, leading to dismissals of civil actions

in federal cases brought under federal statutes in which

Congress has authorized the exercise of personal jurisdiction. These rulings have rested on the erroneous theory that the geographic location of the wrongdoer’s conduct constrains the power of Congress to authorize the

exercise of personal jurisdiction regardless of the important federal interests at stake.3

Shatsky v. Palestine Liberation Org., 955 F.3d 1016, 1037 (D.C.

Cir. 2020); Klieman v. Palestinian Auth., 923 F.3d 1115, 1124-25

3

9

Cases presenting this issue are currently pending in

the Second Circuit, as well as in district courts in the

D.C. and Tenth Circuits. In several of those cases, the

United States has intervened as of right. In three of

those cases, district courts have held statutes unconstitutional in reliance on reasoning that incorrectly imposes

Fourteenth Amendment geographic restrictions on Congress.

In cases like those being prosecuted by amici terror

victims, jurisdiction rests on statutes in which Congress

has not merely authorized service of process, 18 U.S.C. §

2334(a), but has expressly authorized personal jurisdiction, 18 U.S.C. § 2334(e). In such cases, the exercise of

personal jurisdiction is triggered by a foreign defendant’s conduct that is of obvious and important interest to

the United States: conducting activities within the United States; or making payments to terrorists who killed

or injured Americans. 18 U.S.C. § 2334(e)(1). Congress

has also made specific findings supporting the exercise of

(D.C. Cir. 2019), vacated, 140 S. Ct. 2713 (2020); Livnat v. Palestinian Auth., 851 F.3d 45, 57 (D.C. Cir. 2017); United States ex. rel.

TZAC, Inc. v. Christian Aid, No. 17-cv-4135 (PKC), 2021 WL

2354985, at *4 (S.D.N.Y. June 9, 2021), aff’d, No. 21-1542, 2022 WL

2165751, at *2 (2d Cir. June 16, 2022); Spetner v. Palestine Inv.

Bank, 495 F. Supp. 3d 96, 112-13 (E.D.N.Y. 2020); Prime Int’l Trading, Ltd. v. BP P.L.C., 784 F. App’x 4, 9 (2d Cir. 2019); Relevent

Sports, LLC v. U.S. Soccer Fed’n, Inc., No. 19-cv-8359 (VEC), 2020

WL 4194962, at *7 n.12 (S.D.N.Y. July 20, 2020); In re SSA Bonds

Antitrust Litig., 420 F. Supp. 3d 219, 240-41 (S.D.N.Y. 2019); Dennis v. JPMorgan Chase & Co., 343 F. Supp. 3d 122, 199-207

(S.D.N.Y. 2018); Sonterra Cap. Master Fund Ltd. v. Credit Suisse

Grp. AG, 277 F. Supp. 3d 521, 596 (S.D.N.Y. 2017); FrontPoint

Asian Event Driven Fund, L.P. v. Citibank, N.A., No. 16-cv-5263

(AKH), 2017 WL 3600425, at *5-7 (S.D.N.Y. Aug. 18, 2017); In re

Platinum & Palladium Antitrust Litig., No. 14-cv-9391 (GHW),

2017 WL 1169626, at *1, *49 (S.D.N.Y. Mar. 28, 2017).

10

such jurisdiction: that international terrorism “threatens

the vital interests of the United States,” Justice Against

Sponsors of Terrorism Act, Pub. L. 114-222, § 2(a)(1),

and that persons who knowingly or recklessly contribute

material support or resources to terrorists “necessarily

direct their conduct at the United States, and should

reasonably anticipate being brought to court in the United States to answer for such activities,” id. § 2(a)(6).4

Such cases directly raise federal interests of a different order than the interests supporting jurisdiction

under Rule 4(k)(2), and far different than the constitutionally limited interests of the several States under the

Fourteenth Amendment. One such case, Fuld v. Palestine Liberation Organization, No. 22-76 (2d Cir.), has

been fully briefed by plaintiffs and the United States;

squarely presents the constitutional question described

in this brief; and awaits oral argument.

Statutory-jurisdiction cases present superior vehicles for deciding the constitutional question avoided by

the court of appeals majority. They do not implicate the

limits of Federal Rules promulgated under the Rules

Enabling Act, in which any federal interest is at best indirect. Some scholars have asserted that the Rules Enabling Act does not authorize rulemaking to create amenability of a person to the personal jurisdiction of a

court. See Stephen E. Sachs, The Unlimited JurisdicCongress has also set out its purpose “to provide civil litigants

[prosecuting terror claims] with the broadest possible basis, consistent with the Constitution of the United States, to seek relief

against persons, entities, and foreign countries, wherever acting and

wherever they may be found,” id. § 2(b), and has instructed that its

statutes “should be liberally construed to carry out the purposes of

Congress to provide relief for victims of terrorism,” PSJVTA

§ 903(d)(1)(A) (set out as a note to 18 U.S.C. § 2333).

4

11

tion of the Federal Courts, 106 Va. L. Rev. 1703, 1707

(2020) (“the relevant rules’ validity has been questioned

since their adoption, and the skeptics have recently

grown in number”). Cases involving anti-terrorism statutes also have the benefit of accounting for the views of

the United States, which has participated in Fuld and

similar cases starting at the district-court stage. Notably, one member of the Fifth Circuit in the present case

lamented the absence of briefing in this case by the Government, in light of the international sensitivities. Pet.

App. 124 n.4 (Higginson, J., dissenting). Finally, those

cases do not require adoption of an all-or-nothing approach that seems to have animated the dissenters in

this case. They easily accommodate an incremental approach in which the Court evaluates whether the statutory provision reasonably advances legitimate governmental interests, as required under a traditional due

process analysis.

3. Lower-court decisions holding that the Fifth

Amendment imposes a geographic restriction on the

power of Congress to authorize a federal court to exercise personal jurisdiction in a federal case are incorrect.

“[P]ersonal jurisdiction requires a forum-by-forum, or

sovereign-by-sovereign, analysis.” J. McIntyre Mach.,

Ltd. v. Nicastro, 564 U.S. 873, 884 (2011) (plurality opinion). “Because the United States is a distinct sovereign, a

defendant may in principle be subject to the jurisdiction

of the courts of the United States but not of any particular State.” Ibid. As the Solicitor General has explained,

“[t]he United States’ constitutional powers and special

competence in foreign affairs, as distinguished from the

geographically cabined and mutually exclusive sovereignty of the several States, would permit exercises of

federal judicial power that have no analogue at the state

level.” U.S. Br. at 31-32, Mallory v. Norfolk Southern

12

Ry. Co., No. 21-1168 (Sept. 2022); see U.S. Br. at 32,

Ford Motor Co. v. Montana Eighth Judicial Dist. Ct.,

141 S. Ct. 1017 (2021) (similar).

In cases governed by the Fourteenth Amendment,

interstate federalism principles limit a State’s assertion

of personal jurisdiction “to ensure that States with ‘little

legitimate interest’ in a suit do not encroach on States

more affected by the controversy.” Ford Motor Co. v.

Montana Eighth Judicial Dist. Ct., 141 S. Ct. 1017, 1025

(2021) (quoting Bristol-Myers Squibb Co. v. Superior

Court of Cal., 137 S. Ct. 1773, 1780 (2017)). “The sovereignty of each State implies a limitation on the sovereignty of all its sister States,” and “this federalism interest may be decisive.” Bristol-Myers Squibb, 137 S. Ct. at

1780 (cleaned up). Limits on state adjudicative jurisdiction thus align with state regulatory jurisdiction under

the Commerce Clause, which similarly limits each State’s

extraterritorial regulatory powers. Healy v. Beer Inst.,

Inc., 491 U.S. 324, 336 (1989).

The majority and dissenters below all agreed that

interstate federalism considerations—which can be dispositive in the Fourteenth Amendment context—“are

irrelevant under the Fifth Amendment.” Pet. App. 17

(majority); id. at 80 (dissent). That is correct. “Power

over external affairs is not shared by the States,” but instead “is vested in the national government exclusively.”

United States v. Pink, 315 U.S. 203, 233 (1942); see Arizona v. United States, 567 U.S. 387, 395 (2012). The Constitution’s text allocates matters involving national security, foreign affairs, and foreign commerce exclusively to

the national government. Compare U.S. Const. art. I, §

8, cls. 1, 3, 11; art. II, § 2; and art. IV, § 4, with U.S.

Const. art. I, § 10, cls. 2-3.

Assertions of sovereignty by the national government over disputes arising abroad do not infringe the

13

sovereignty of any other actor within our constitutional

framework. Unlike the States, “Congress has the authority to enforce its laws beyond the territorial boundaries

of the United States.” EEOC v. Arabian Am. Oil Co., 499

U.S. 244, 248 (1991); see Gamble v. United States, 139 S.

Ct. 1960, 1967 (2019); Restatement (Third) of the Foreign Relations Law of the United States § 403 comment

a & reporter’s note 1 (2018). Thus, “the underlying sovereignty considerations of the United States within the

world community are quite different from those of the

states within our confederation of states.” Wendy Collins

Perdue, Aliens, the Internet, and “Purposeful Availment”: A Reassessment of Fifth Amendment Limits on

Personal Jurisdiction, 98 Nw. U. L. Rev. 455, 457 (2004).

While the courts are mindful of the effects of jurisdictional decisions on “international rapport,” Daimler AG

v. Bauman, 571 U.S. 117, 142 (2014), this Court defers to

the judgment of the political branches on the potential

for “ ‘serious foreign policy consequences’ ” flowing from

the exercise of federal jurisdiction. Jesner v. Arab Bank,

PLC, 138 S. Ct. 1386, 1407 (2018) (quoting Kiobel v.

Royal Dutch Petroleum Co., 569 U.S. 108, 124 (2013)).

The dissenters below make a powerful case that the

Due Process Clause of the Fifth Amendment, as originally understood, “imposed few (if any) barriers to federal

court personal jurisdiction.” Pet. App. 61 (discussing

Stephen E. Sachs, The Unlimited Jurisdiction of the

Federal Courts, 106 Va. L. Rev. at 1710-1712; Max Crema & Lawrence B. Solum, The Original Meaning of

“Due Process of Law” in the Fifth Amendment, 108 Va.

L. Rev. 447, 453 (2022)). But at minimum, the Fifth

Amendment is satisfied if the statute in question provides fair warning to the defendant that its conduct

might subject it to jurisdiction in the United States and if

it reasonably advances a legitimate federal interest. This

14

is the standard generally applied in due process review,5

and it is the standard uniformly adopted by the courts of

appeals, see Pet. App. 91-93 & n.34 (collecting cases).

CONCLUSION

The question whether the Fifth Amendment’s Due

Process Clause bars federal courts from exercising personal jurisdiction authorized by Congress over a foreign

defendant whose conduct harms U.S. citizens or U.S. interests outside the United States is a recurring and important question, which the Court should resolve in a

suitable case.

Respectfully submitted.

ALLON KEDEM

DIRK C. PHILLIPS

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave.

Washington, DC 20001

(202) 942-5000

KENT A. YALOWITZ

Counsel of Record

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

(212) 836-8344

kent.yalowitz@arnoldporter.com

Counsel for the Sokolow and

Fuld Amici

See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 542 (2005) (federal regulation should be upheld unless it “fails to serve any legitimate governmental objective,” rendering it “so arbitrary or irrational that it runs afoul of the Due Process Clause”); Rogers v.

Tennessee, 532 U.S. 451, 460 (2001) (Due Process Clause ensures

“fundamental fairness through notice and fair warning and the prevention of the arbitrary and vindictive use of the laws.”) (punctuation omitted for clarity).

5

15

RICHARD D. HEIDEMAN

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Counsel for the Klieman

Amici

FEBRUARY 2023

Counsel for the Fuld Amici