Amicus Curiae Brief — Miriam Fuld, et al., Petitioners v. Palestine Liberation Organization, et al.

Supreme Court briefFeb 4, 2025

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Nos. 24-20 and 24-151

IN THE

Supreme Court of the United States

̴̴̴̴̴̴̴̴̴

MIRIAM FULD, ET AL., Petitioners,

PALESTINE LIBERATION ORGANIZATION, ET AL.,

Respondents.

________

UNITED STATES, Petitioner,

PALESTINE LIBERATION ORGANIZATION, ET AL.,

Respondents.

________

On Writs of Certiorari to the United States Court of

Appeals for the Second Circuit

__________________________________________________

BRIEF OF AMICUS CURIAE

AMERICA FIRST LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

__________________________________________________

REED D. RUBINSTEIN

R. TRENT MCCOTTER

AMERICA FIRST LEGAL

Counsel of Record

FOUNDATION

JONATHAN FELD*

611 PENNSYLVANIA AVE. SE BOYDEN GRAY PLLC

NO. 231

800 CONNECTICUT AVE. NW

SUITE 900

WASHINGTON, DC 20003

WASHINGTON, DC 20006

(202) 706-5488

* Admitted in Pennsylvania;

tmccotter@boydengray.com

practice supervised by D.C.

Bar Members

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICUS CURIAE................... 1

SUMMARY OF THE ARGUMENT ........................... 4

The Second Circuit Misapplied Mallory ............ 4

A. Mallory Does Not Require Receipt of a

Benefit from the Forum in Exchange for

Consenting to Personal Jurisdiction ............. 4

B. Even If Mallory Requires Respondents to

Have Accepted Benefits, They Did So ........... 5

II.

Foreign Organizations Like Respondents Do

Not Possess Constitutional Personal

Jurisdiction Rights in Federal Courts ............... 9

A. The Fifth Amendment’s Due Process

Clause Was Not Originally Understood to

Limit Federal Courts’ Jurisdiction ................ 9

B. Foreign Entities in Particular Are Subject

to Whatever Procedural Rules the

Legislature Imposes ..................................... 14

III.

Affirming the Decision Below Would Cause

Serious Harms to National Security and

Americans’ Safety ............................................. 16

CONCLUSION ......................................................... 21

TABLE OF AUTHORITIES

Page(s)

Cases

Bank Markazi v. Peterson,

578 U.S. 212 (2016) .............................................. 16

Bristol-Myers Squibb Co. v. Super. Ct. of

Cal., S.F. Cnty., 582 U.S. 255 (2017)..................... 9

Devas Multimedia Priv. Ltd. v. Antrix

Corp., 91 F.4th 1340 (9th Cir. 2024) ................... 14

Douglass v. Nippon Yusen Kabushiki

Kaisha, 46 F.4th 226 (5th Cir. 2022)....... 10, 13, 14

Frontera Res. Azerbaijan Corp. v. State

Oil Co. of Azerbaijan Republic,

582 F.3d 393 (2d Cir. 2009) ................................. 14

Hernandez v. Mesa,

589 U.S. 93 (2020) .......................................... 16, 19

Holder v. Humanitarian L. Project,

561 U.S. 1 (2010) ........................................ 2, 16, 18

Lafayette Ins. Co. v. French,

59 U.S. (18 How.) 404 (1855) ............................... 15

Lewis v. Mutond,

62 F.4th 587 (D.C. Cir. 2023) .............................. 13

Mallory v. Norfolk Southern Railway

Co., 600 U.S. 122 (2023)............... 3, 4, 5, 6, 8, 9, 15

Paul v. Virginia,

75 U.S. 168 (1868) ................................................ 15

iii

Principality of Monaco v. Mississippi,

292 U.S. 313 (1934) .............................................. 15

Smolik v. Phila. & Reading Coal & Iron

Co., 222 F. 148 (S.D.N.Y. 1915) ............................. 8

United States v. Morton Salt Co.,

338 U.S. 632 (1950) .............................................. 15

Statutes

15 U.S.C. § 77v .......................................................... 13

15 U.S.C. § 78aa ........................................................ 13

18 U.S.C. § 2334 ...................................................... 6, 7

22 U.S.C. § 2378c-1 ..................................................... 2

Promoting Security and Justice for

Victims of Terrorism Act of 2019,

Pub. L. No. 116-94, § 903, 133 Stat.

2534 ........................................................................ 3

Pub. L. No. 107-40, 115 Stat. 224 (2001) .................. 19

Pub. L. No. 109-446, 120 Stat. 3318 ........................... 7

Taylor Force Act, Pub. L. No. 115-141,

132 Stat. 1143 (2018) ............................................. 1

Other Authorities

William Blackstone, Commentaries on

the Laws of England (1753) ................................. 12

Max Crema & Lawrence B. Solum, The

Original Meaning of “Due Process of

Law” in the Fifth Amendment, 108

Va. L. Rev. 447 (2022) .......................................... 10

Alexander Hamilton, A Letter from

Phocion to the Considerate Citizens

of New York (Jan. 1784) ....................................... 12

Matthew Miller, Department Press

Briefing – October 7, 2024, Dep’t of

State (Oct. 7, 2024), https://20212025.state.gov/briefings/departmentpress-briefing-october-7-2024/ ............................. 17

Stephen E. Sachs, The Unlimited

Jurisdiction of the Federal Courts,

106 Va. L. Rev. 1703 (2020) ................................. 10

Joseph Story, Commentaries on the

Constitution of the United States

(Hillard, Gray & Co. 1833) .................................. 12

Andrew Tobin, Palestinian Authority,

Key to Biden’s Mideast Peace Plan,

Commits to Pay $97M a Year to

Hamas, Wash. Free Beacon (Mar. 4,

2024), https://freebeacon.com/

national-security/palestinianauthority-key-to-bidens-mideastpeace-plan-commits-to-pay-97m-ayear-to-hamas/ ..................................................... 18

Ingrid Wuerth, The Due Process and

Other Constitutional Rights of

Foreign Nations, 88 Fordham L. Rev.

633 (2019) ............................................................. 11

Editorial Board, Palestinian ‘Pay for

Slay’ Keeps Growing, Wall St. J.

(Jan. 15, 2024) ...................................................... 18

Notice on the Legal and Policy

Frameworks Guiding the United

States’ Use of Military Force and

Related National Security

Operations 1 (2020),

https://www.documentcloud.org/

documents/6776446-Section-1264NDAA-Notice/....................................................... 19

INTEREST OF AMICUS CURIAE1

America First Legal Foundation is a nonprofit

organization dedicated to promoting the rule of law in

the United States and defending individual rights

guaranteed under the Constitution and federal

statutes.

America First Legal is led and staffed by

individuals who have substantial experience working

in the highest levels of the White House, the

Department of Justice, and the Department of

Homeland Security, and it has unique expertise in the

subject matter of this case. Currently, America First

Legal is serving as counsel to U.S. Representative

Ronny Jackson (R-Tx), Stuart and Robbie Force, and

Sari Singer in a case captioned Jackson et al. v. Biden

et al., Case No. 2:22-CV-241-Z (N.D. Tx). Jackson

alleges that the former administration violated the

Taylor Force Act, Pub. L. No. 115-141, div. S, title X,

132 Stat. 1143 (2018), prohibiting the United States

Government from obligating economic support funds

for the West Bank and Gaza that directly benefit the

Palestinian Authority.

Taylor Force, the child of plaintiffs Mr. and Mrs.

Force and the Act’s namesake, was a West Point

graduate. Taylor was murdered by a Palestinian

terrorist. The Palestinian Authority celebrated this

1 No counsel for any party has authored this brief in whole or in

part, and no entity or person, aside from Amicus’s counsel, made

any monetary contribution intended to fund the preparation or

submission of this brief.

crime and is paying the terrorist’s family a monthly

bounty in reward for his death.

As this Court quite correctly acknowledged, money

is terrorism’s life blood. “The State Department

informs us that ‘[t]he experience and analysis of the

U.S. government agencies charged with combating

terrorism strongly suppor[t]’ Congress's finding that

all contributions to foreign terrorist organizations

further their terrorism.” Holder v. Humanitarian L.

Project, 561 U.S. 1, 33 (2010). Congress passed the

Taylor Force Act to prevent U.S. tax dollars from

subsidizing the Palestinian Authority and thus

incentivizing Palestinian terrorism; as America First

Legal has argued in that case, Congress has

recognized that all funds in the hands of the

Palestinian Authority and the related Palestine

Liberation Organization “ultimately inure[s] to the

benefit of their criminal, terrorist functions—

regardless of whether such support was ostensibly

intended to support non-violent, non-terrorist

activities.” Id.; see 22 U.S.C. § 2378c-1.

Accordingly, America First Legal submits this

brief to inform the Court about the errors in the

decision below and the serious consequences for the

Nation’s security if the decision is not reversed.

SUMMARY OF THE ARGUMENT

In its decision below, the Second Circuit

invalidated the Promoting Security and Justice for

Victims of Terrorism Act of 2019 (“PSJVTA”), Pub. L.

No. 116-94, § 903, 133 Stat. 2534, 3082, Congress’s

third attempt to allow victims of Respondents’

terrorism to seek justice in federal courts. This Court

should reverse for several reasons.

First, the Second Circuit misconstrued and

misapplied this Court’s recent decision in Mallory v.

Norfolk Southern Railway Co., 600 U.S. 122 (2023).

Contrary to the opinion below, Mallory does not

require a defendant to receive a benefit from a forum

in exchange for impliedly consenting to personal

jurisdiction there. See Part I.A, infra. In any event,

Respondents did receive a benefit from the United

States in the form of conducting activities and

maintaining premises in America. See Part I.B, infra.

The Second Circuit’s response that these benefits

were unlawfully received is both false and irrelevant.

See Part I.B, infra.

Second, extending broad personal jurisdiction

protections to Respondents is especially unsound

because the Fifth Amendment’s Due Process Clause,

as originally understood, did not concern personal

jurisdiction at all, see Part II.A, infra, and certainly

not for foreign entities, see Part II.B, infra.

Third, if affirmed, the decision below will have

devastating foreign-policy consequences and preclude

American victims of Palestinian terrorism from

seeking justice. See Part III, infra.

The Court should reverse.

ARGUMENT

The Second Circuit Misapplied Mallory.

The Second Circuit made two dispositive errors

when applying this Court’s recent Mallory decision.

The court held that (1) Respondents were required to

receive a benefit from the forum in exchange for

consenting to personal jurisdiction; and (2) any such

benefits received here were unlawful and thus do not

qualify. Both holdings are erroneous.

Mallory Does Not Require Receipt of

a Benefit from the Forum in

Exchange

for

Consenting

Personal Jurisdiction.

Mallory held that personal jurisdiction can be

established through implied consent, but the Second

Circuit erroneously held that Respondents could

impliedly consent to personal jurisdiction only in two

narrow circumstances: (1) via “litigation-related

conduct,” or (2) “where [they] accept[] a benefit from

the forum in exchange for [their] amenability to suit

in the forum’s courts,” meaning “reciprocal bargains.”

Pet.App.20a, 22–24a.2

That was wrong. Mallory did not turn on whether

the defendant (Norfolk Southern) had “accept[ed] a

2 “Pet.App.” refers to the certiorari-stage appendix filed by

Petitioners Miriam Fuld et al. on July 3, 2024 (No. 24-20).

benefit from” the venue (Pennsylvania), but rather

whether the defendant had “take[n] a ‘voluntary act’

that the law treats as consent.” Pet.App.243a

(Menashi, J., dissenting from the denial of rehearing

en banc). Thus, “[t]he defendant need not specifically

intend to consent to jurisdiction.” Id. Mallory itself

indicated as much. Far from being limited, “a variety

of legal arrangements have been taken to represent …

implied consent to personal jurisdiction consistent

with due process,” and this Court has “[n]ever

imposed some sort of ‘magic words’ requirement” for

such implied consent. Mallory, 600 U.S. at 136 n.5

(cleaned up).

Therefore, “[t]he consent of the foreign entity

must only be knowing and voluntary and involve some

nexus to the forum such that requiring consent would

not be ‘unfair.’” Pet.App.243–44a (citing Mallory, 600

U.S. at 141 (plurality opinion); id. at 153–54 (Alito, J.,

concurring in part and concurring in the judgment)).

There is hardly anything “unfair,” Mallory, 600 U.S.

at 141, in subjecting sophisticated entities to

jurisdiction for conduct that they surely recognized

would qualify under the relevant statutes.

Even

Mallory

Respondents to Have

Benefits, They Did So.

Requires

Accepted

The Second Circuit also misapplied its own test.

Even if Mallory did require Respondents to have

accepted benefits from the forum, they did so—and

thus consented to personal jurisdiction.

Plaintiffs’ complaint “alleges that the [Palestine

Liberation Organization (‘PLO’)] and the [Palestinian

Authority (‘PA’)] maintained premises and engaged in

official activities in the United States” after passage

of the PSVJTA. Pet.App.248a (Menashi, J., dissenting

from the denial of rehearing). Not only is that a

benefit received, but the PSJVTA expressly warned

Respondents that it would be. See 18 U.S.C.

§ 2334(e)(1)(B) (recognizing that after a fifteen-day

grace period, Respondents’ “maintain[ing]” or

“establish[ing] or procur[ing] any office, headquarters,

premises, or other facilities or establishments in the

United States” or “conduct[ing] any activity while

physically present in the United States on behalf of

the [PLO] or the [PA]” would be a benefit resulting in

personal jurisdiction).

That makes this an even easier case than Mallory

itself, where the registration statute itself did not say

it entailed consent to jurisdiction—rather, that was in

a separate statute. 600 U.S. at 134.

The Second Circuit declined to count these

benefits, however, because the PA and PLO allegedly

procured them by engaging in unlawful conduct. The

court claimed that “federal law has long prohibited

[Respondents] from engaging in any activities or

maintaining any offices in the United States, absent

specific executive or statutory waivers.” Pet.App.28a.

The court acknowledged that the U.S. government has

long permitted Respondents to engage in that conduct

anyway, despite its illegality, but found that fact

irrelevant. Pet.App.29a n.10.

But the court misread parts of the relevant

provisions. To be sure, the Palestinian Anti-Terrorism

Act of 2006 makes it “unlawful” for the PA “to

establish or maintain an office, headquarters,

premises, or other facilities or establishments within

the jurisdiction of the United States” absent certain

certifications. Pub. L. No. 109-446, § 7(a), 120 Stat.

3318, 3324 (codified at 22 U.S.C. § 2378b note). But

the PA does not appear to be barred under that law

from “conduct[ing] any activity while physically

present in the United States” on the PA’s behalf,

which the PSJVTA establishes as an independent

benefit that will confer personal jurisdiction. 18

U.S.C. § 2334(e)(1)(B)(iii). Thus, there is not complete

overlap between what the PA is barred from doing and

what acts will be considered a benefit conferring

personal jurisdiction over the PA.

As Judge Menashi explained in dissent below,

Pet.App.251a n.21, Plaintiffs triggered the PSJVTA’s

“conducting-and-activity” provision by alleging: (1)

“while physically in the United States, [Respondents]

have conducted press conferences and created and

distributed informational materials,” JA.4093 (Fuld

Am. Compl. ¶ 75); (2) made “communications,” id.

(¶ 76); and (3) “updated their website and/or their

United States-based social-media accounts while

physically inside the United States,” JA.410, 414

(¶¶ 85, 88); and (3) social media updates, JA.414

(¶ 88).

3 “JA” refers to the Joint Appendix filed on January 28, 2025 (No.

24-20).

More fundamentally, however, the Second

Circuit’s premise was wrong. Even if Respondents’

conduct were all unlawful, that is no reason to

disregard it for purposes of personal jurisdiction.

“Congress often creates civil liability to penalize

unlawful conduct. The whole premise of specific

personal jurisdiction is that wrongful conduct in the

forum gives the forum an interest in subjecting the

bad actor to the jurisdiction of its courts. And tag

jurisdiction, the analogue of deemed-consent statutes,

has never been limited only to those lawfully present

in the forum.” Pet.App.252a (Menashi, J., dissenting

from the denial of rehearing) (emphases in original)

(collecting authorities).

The Second Circuit’s rule that implied consent

cannot consider unlawful conduct leads to absurd

results. An “outlaw who refused to obey the laws of

the state would be in better position than a

corporation which chooses to conform.” Smolik v.

Phila. & Reading Coal & Iron Co., 222 F. 148, 150

(S.D.N.Y. 1915) (Hand, J.). Imagine a statute

analogous to Pennsylvania’s in Mallory, except the

statute instituted deemed consent for any business

that knowingly opened a retail store in the state. In

the Second Circuit’s view, a lawful supermarket chain

with a branch in Pennsylvania would have consented

to personal jurisdiction, but not the owner of an illicit

drug dispensary.

This Court has long recognized that unlawful

conduct does not exempt a defendant from personal

jurisdiction. For example, in Old Wayne Mutual Life

Ass’n v. McDonough, the Court noted that “if an

insurance corporation of another state transacts

business in Pennsylvania without complying with its

provisions, it will be deemed to have assented to any

valid terms prescribed by that commonwealth as a

condition of its right to do business there,” and would

even “be estopped to say that it had not done what it

should have done in order that it might lawfully enter

that commonwealth and there exert its corporate

powers.” 204 U.S. 8, 21–22 (1907).

***

The decision below misinterpreted Mallory, but

even if it didn’t, this Court should still reverse because

Respondents accepted benefits from the forum—and

thus consented to personal jurisdiction.

II.

Foreign Organizations Like Respondents

Do Not Possess Constitutional Personal

Jurisdiction Rights in Federal Courts.

Extending broad personal jurisdiction protections

to Respondents was especially unsound because the

Fifth Amendment’s due process protection was not

traditionally understood to limit federal courts’

jurisdiction, and especially not for foreign entities.

The Fifth Amendment’s Due Process

Clause

Was

Not

Originally

Understood to Limit Federal Courts’

Jurisdiction.

The Court has previously left “open the question

whether the Fifth Amendment imposes the same

restrictions on the exercise of personal jurisdiction by

a federal court” as the Fourteenth Amendment does

for state courts. Bristol-Myers Squibb Co. v. Super. Ct.

of Cal., S.F. Cnty., 582 U.S. 255, 269 (2017); see also

Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th

226, 254 (5th Cir. 2022) (Elrod, J., dissenting) (“If 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 [must be] prov[en] … with reference to the

Fifth Amendment’s text, history, and structure.”).

There are strong originalist arguments for why the

Fifth Amendment’s Due Process Clause does not

impose personal jurisdiction limits at all, making it all

the more clear that the Second Circuit erred by

granting extensive protections to Respondents.

First, scholarship has shown that the Fifth

Amendment was not originally understood to limit

personal jurisdiction; it merely required service of

process in the narrow sense. See Max Crema &

Lawrence B. Solum, The Original Meaning of “Due

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

Rev. 447 (2022); Stephen E. Sachs, The Unlimited

Jurisdiction of the Federal Courts, 106 Va. L. Rev.

1703, 1743 (2020) (“The Fifth Amendment bars the

execution of a federal judgment only if the federal

court lacked jurisdiction. And Congress gets to answer

th[e jurisdiction] question.”); see also Pet.App.254–

55a (Menashi, J., dissenting from the denial of

rehearing) (discussing this scholarship).

Congress was limited only by its enumerated

powers, because all personal jurisdiction limits were

derived from general, international law principles,

which could always be overridden by federal statutes.

Sachs, supra, at 1708–17; Pet.App.256–58a (Menashi,

J., dissenting from the denial of rehearing); see also,

e.g., The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815)

(“Till [a contrary] act be passed, the Court is bound by

the law of nations which is a part of the law of the

land.”). “[W]hen it comes to personal jurisdiction, due

process limitations may be largely coextensive with

the process that Congress chooses to provide.” Ingrid

Wuerth, The Due Process and Other Constitutional

Rights of Foreign Nations, 88 Fordham L. Rev. 633,

679–86 (2019).

Second, early caselaw strengthens that view. In

Picquet v. Swan, Justice Story, riding circuit, held

that “independent 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.” 19 F.

Cas. 609, 613 (C.C.D. Mass. 1828). Even aliens

without property in the United States would be

constitutionally “amenable to the jurisdiction of any

circuit court.” Id. If Congress passed a statute

authorizing jurisdiction, “a subject of England, or

France, or Russia, having a controversy with one of

our own citizens, may be summoned from the other

end of the globe to obey our process, and submit to the

judgment of our courts.” Id. “If Congress had

prescribed such a rule, the court would certainly be

bound to follow it, and proceed upon the law,” id. at

615, even though such a rule would be “repugnant to

the general rights and sovereignty of other nations,”

id. at 613.

This Court later adopted Story’s logic in Toland v.

Sprague, which held that an American plaintiff

attaching the American property of a foreign

defendant was “unjust” and unauthorized by statute.

37 U.S. (12 Pet.) 300, 328–29 (1838). Accepting the

“great force” of the reasoning in Picquet, this Court

explained that it reached this conclusion only

“independent[] of positive legislation” because

“Congress might have authorized civil process from

any circuit court, to have run into any state of the

Union,” even for “persons in a foreign jurisdiction.” Id.

at 328, 330.

This early caselaw tracks the contemporary

understanding that “due process” meant adherence to

the “law of the land” as decided by the legislature.

Writing just five years after Picquet, Justice Story

noted that the Fifth Amendment’s Due Process Clause

derived from “the language of magna charta, ‘nec

super eum ibimus, nec super eum mittimus, nisi per

legale juciium 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.” 3 Joseph Story, Commentaries on the

Constitution of the United States § 1783 (Hillard, Gray

& Co. 1833) (emphasis added).4 And “law of the land”

meant the rules crafted by the legislature: “the law of

the land … depends not upon the arbitrary will of any

judge; but is permanent, fixed, and unchangeable,

unless by authority of parliament.” 1 William

4 See also 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) (noting that “if we enquire what is

meant by the law of the land, the best commentators will tell us

that it means due process of law”) (citing 2 Edward Coke,

Institutes of the Lawes of England 50 (1642)).

Blackstone, Commentaries on the Laws of England

*141–42 (1753) (emphasis added).

Also telling is the absence of early rulings applying

the Fifth Amendment to personal jurisdiction

disputes. It was “not until the Civil War [that] a single

court, state or federal, [would] hold a personaljurisdiction statute invalid on due process grounds.”

Sachs, supra, at 1712.

There is also a solid logical reason why the Fifth

Amendment’s Due Process Clause would not impose

the same limits on federal court as the International

Shoe line of cases does on state courts via the

Fourteenth Amendment. Congress, unlike States, can

legislate beyond its borders. If Congress can regulate

conduct beyond the United States, why can’t it also

take the lesser step of subjecting foreign entities to

personal jurisdiction? Congress already routinely does

so. Several securities statutes give the federal courts

jurisdiction over claims related to “conduct occurring

outside the United States that has a foreseeable

substantial effect within the United States,” while

simultaneously authorizing nationwide service and

personal jurisdiction. 15 U.S.C. §§ 77v(c), 78aa(b);

80a-43. Other statutes even allow for worldwide

service. See id. § 22.

Citing this record, judges across the country have

reasoned that the Fifth Amendment simply does not

contain the same sort of personal jurisdiction

protections as the Fourteenth Amendment. See

Pet.App.254–55a (Menashi, J., dissenting from the

denial of rehearing); Lewis v. Mutond, 62 F.4th 587,

598 (D.C. Cir. 2023) (Rao, J., concurring); Douglass,

46 F.4th at 255 (5th Cir. 2022) (en banc) (Elrod, J.,

dissenting); id. at 282 (Higginson, J., dissenting); id.

at 284 (Oldham, J., dissenting); Devas Multimedia

Priv. Ltd. v. Antrix Corp., 91 F.4th 1340, 1352 (9th

Cir. 2024) (Bumatay, J., dissenting from the denial of

rehearing en banc).

Regardless of how the Court has construed the

Fourteenth Amendment’s Due Process Clause in the

context of challenges to personal jurisdiction, the Fifth

Amendment should not render the PSJVTA

unconstitutional.

Foreign Entities in Particular Are

Subject to Whatever Procedural

Rules the Legislature Imposes.

Foreign entities like Respondents are particularly

unlikely to possess personal-jurisdiction rights

arising from the Constitution.

Take foreign nation-states, for example. Despite

being sovereigns, they lack constitutional due process

rights altogether—and thus personal jurisdiction

rights—because they are not “persons” for purposes of

the Fifth or Fourteenth Amendments. Pet.App.238a

(Menashi, J., dissenting from the denial of rehearing);

see, e.g., Frontera Res. Azerbaijan Corp. v. State Oil

Co. of Azerbaijan Republic, 582 F.3d 393, 400 (2d Cir.

2009).

It would be nonsensical to say that foreign

unincorporated entities (like Respondents) receive

greater constitutional due process protections than

foreign sovereigns themselves receive. Such entities,

just like “foreign State[s]” themselves, “lie[] outside

the structure of the Union.” Principality of Monaco v.

Mississippi, 292 U.S. 313, 330 (1934). And all the

more so when one of Respondents already claims to be

a sovereign government. See Pet.App.238a (Menashi,

J., dissenting from the denial of rehearing); see also

United States v. Morton Salt Co., 338 U.S. 632, 652

(1950).5

In the nineteenth century, courts repeatedly held

that foreign corporations were subject to whatever

procedural rules had been imposed by the state in

which the corporation operated. See, e.g., Paul v.

Virginia, 75 U.S. 168, 181 (1868); Lafayette Ins. Co. v.

French, 59 U.S. (18 How.) 404, 404–07 (1855). Of

course, “foreign” in that context usually meant

incorporated in a different state within the United

States, see Mallory, 600 U.S. at 129, but the treatment

is informative. An entity operating in a particular

state had to abide by whatever procedural rules it

imposed, or else it could cease operating there. It

makes sense that the same rule would apply here:

entities formed outside the United States have to

comply with whatever procedural rules the federal

government itself imposes. The alternative—which

was spelled out in the PSJVTA—was to cease

operating here. Respondents declined and thus are

5 According to Justice Jackson, “corporations can claim no

equality with individuals in the enjoyment of a right to privacy.

They are endowed with public attributes. They have a collective

impact upon society, from which they derive the privilege of

acting as artificial entities. The Federal Government allows

them the privilege of engaging in interstate commerce. Favors

from government often carry with them an enhanced measure of

regulation.” Morton Salt Co., 338 U.S. at 652.

subject to personal jurisdiction in the courts of the

United States.

III.

Affirming the Decision Below Would

Cause Serious Harms to National Security

and Americans’ Safety.

As Judge Menashi noted in his dissent below,

“[i]nvalidating an act of Congress is ‘the gravest and

most delicate duty that [a federal court] is called on to

perform.’” Pet.App.230a (quoting Blodgett v. Holden,

275 U.S. 142, 148 (1927)). And even graver and more

delicate is invalidating a federal law addressing “a

matter of foreign policy,” Bank Markazi v. Peterson,

578 U.S. 212, 215 (2016), which is “delicate, complex,

and involve[s] large elements of prophecy for which

the Judiciary has neither aptitude, facilities, nor

responsibility,” Hernandez v. Mesa, 589 U.S. 93, 113

(2020) (cleaned up).

Here, in response to a serious national security

and foreign policy threat, and taking into account the

Second Circuit’s rulings on prior statutes seeking to

hold Respondents accountable, Congress and the

President enacted a law crafting a very specific

solution to enable American victims and their families

to obtain justice and to strengthen deterrence by

imposing financial consequences on those who

commit, support, and facilitate Palestinian terrorism.

Accord Holder, 561 U.S. at 32–33.

But if even that narrow provision is unenforceable,

Plaintiffs will likely be unable ever to seek any

measure of justice for Respondents’ crimes, not only

letting them off the hook but further emboldening

them.

The facts in one of the cases below are instructive.

“[W]ith respect to Hamas’s bombing of the Hebrew

University in Jerusalem on July 31, 2002, the jury

found that the defendants ‘knowingly provided

material support or resources that were used in

preparation for or in carrying out this attack’; that ‘an

employee of the PA, acting within the scope of his

employment and in furtherance of the activities of the

PA, either carried out, or knowingly provided material

support,’ for the attack; that both the PLO and the PA

knowingly provided material support to Hamas

following its designation as a foreign terrorist

organization; and that both defendants ‘harbored or

concealed a person who the [defendants] knew, or had

reasonable grounds to believe, committed or was

about to commit this attack.’” Pet.App.234a n.4

(Menashi, J., dissenting from the denial of rehearing)

(quoting Jury Verdict Form at 5–6, Sokolow v. PLO,

No. 04-CV-00397 (S.D.N.Y. Feb. 25, 2015), ECF No.

825).

But the Second Circuit has never allowed the

PSJVTA to go into effect, and unsurprisingly

Respondents have not been deterred. On October 7,

2023, Hamas committed its most appalling act of

terrorism yet, slaughtering “1,200 men, women, and

children – including 46 Americans and citizens of

more than 30 countries” and taking “254 people

hostage – including 12 Americans.” Matthew Miller,

Department Press Briefing – October 7, 2024, Dep’t of

State (Oct. 7, 2024), https://2021-2025.state.gov/

briefings/department-press-briefing-october-7-2024/.

Even after the horror of October 7, Respondents

continue to support terrorism. As part of its “martyr”

payments to terrorists killed or imprisoned in their

efforts to kill Jews, the PA is currently paying salaries

to at least 661 Hamas terrorists involved in the

October 7 attacks. Editorial Board, Palestinian ‘Pay

for Slay’ Keeps Growing, Wall St. J. (Jan. 15, 2024),

https://www.wsj.com/articles/palestinian-pay-forslay-hamas-oct-7-israel-gaza-antony-blinkenramallah-2dce9a22.

As noted in the Interest of Amicus section above,

America First Legal represents the family of Taylor

Force, who was murdered by a Palestinian terrorist

whose family now receives a monthly payout as

reward. See also Am. Compl. ¶¶ 1-9, 18–34, 57–72,

98–101, Jackson v. Biden, No. 2:22-cv-241 (N.D. Tex.

Mar. 25, 2024).

Congress

rightfully

recognized

that

“all

contributions to foreign terrorist organizations

further their terrorism,” and thus the only way to

obtain some measure of deterrence is to go after the

money, which is precisely what the PSJVTA allows.

Holder, 561 U.S. at 33.

“[B]ased on Israel Defense Forces estimates of

enemy casualties and prisoners, the PA has put itself

on the hook for more than $97 million in such

payments for more than 13,000 Hamas terrorists in

the year following Oct. 7.” Andrew Tobin, Palestinian

Authority, Key to Biden’s Mideast Peace Plan,

Commits to Pay $97M a Year to Hamas, Wash. Free

Beacon (Mar. 4, 2024), https://freebeacon.com/

national-security/palestinian-authority-key-tobidens-mideast-peace-plan-commits-to-pay-97m-ayear-to-hamas/.

Even before these latest atrocities, Congress and

the President reasonably concluded that enough is

enough. Judicial deference to that political foreign

policy solution is particularly appropriate, yet the

decision below risks “upsetting the delicate web of

international relations” on an international policy

issue of the greatest magnitude. Hernandez, 589 U.S.

at 113.

The unavailability of civil relief could very well

lead to more dramatic action against the PA and the

PLO. Congress has previously authorized the use of

military force against those who have committed acts

of terrorism against Americans,

see, e.g.,

Authorization for Use of Military Force, Pub. L. No.

107-40, 115 Stat. 224 (2001), and the President has

also taken military action against terrorists, see, e.g.,

Notice on the Legal and Policy Frameworks Guiding

the United States’ Use of Military Force and Related

National

Security

Operations

(2020),

https://www.documentcloud.org/documents/6776446Section-1264-NDAA-Notice/.

The Due Process Clause would impose no barrier

against those more drastic actions. Indeed, as Judge

Menashi noted below in dissent, there is no

constitutional question that the federal government

could have criminalized certain terrorist offenses and

support for Respondents, sanctioned them, and even

used unrestricted military force against them.

Pet.App.262–65a (Menashi, J., dissenting from the

denial of rehearing) (citing constitutional and

statutory authorities for these actions).

“It does not make sense to conclude that

[Respondents] … have an inviolable liberty interest in

avoiding a civil suit in federal court” when they could

be criminalized, sanctioned, and bombed for “the

same” underlying conduct. Pet.App.265a.

CONCLUSION