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 AMICUS CURIAE OF THE

CHAMBER OF COMMERCE OF THE

UNITED STATES OF AMERICA

IN SUPPORT OF PETITIONERS

————

JENNIFER B. DICKEY

JONATHAN D. URICK

U.S. CHAMBER LITIGATION

CENTER

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Chamber of

Commerce of the United

States of America

PETER B. RUTLEDGE

Counsel of Record

HILLARY K. LUKACS

MORRIS MANNING &

MARTIN LLP

1600 Atlanta Financial Center

3343 Peach Tree Road, N.E.

Atlanta, GA 30326-1044

(404) 233-7000

brutledge@mmmlaw.com

Counsel for Amicus Curiae

February 4, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE.....................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

Respondents are not “persons” entitled

to due process under the Fifth

Amendment ...............................................

It is not necessary for this Court to

examine other aspects of the Fifth

Amendment limits on the exercise of

personal jurisdiction. Even if it did so, it

should still reverse and remand ...............

A. The Fifth Amendment imposes different limits on the exercise of personal

jurisdiction than does the Fourteenth

Amendment .........................................

B. The consent doctrine is a narrow

exception to those Fifth and Fourteenth Amendment limits on personal

jurisdiction ...........................................

CONCLUSION ....................................................

II.

(i)

TABLE OF AUTHORITIES

CASES

Page(s)

Asahi Metal Indus. Co. v.

Superior Ct. of Cal.,

480 U.S. 102 (1987) ................................... 19, 25

Bank Markazi v. Peterson,

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

BNSF Ry. Co. v. Tyrrell,

581 U.S. 402 (2017) ...................................

Bond v. United States,

564 U.S. 211 (2011) ...................................

Bristol-Myers Squibb Co. v.

Superior Ct. of Calif.,

582 U.S. 255 (2017) ...................................

Burnham v. Superior Court,

495 U.S. 604 (1990) ...................................

Carnival Cruise Lines, Inc. v. Shute,

499 U.S. 585 (1991) ...................................

CC/Devas (Multimedia) Ltd. v.

Antrix Corp., Ltd.,

(No. 23-1201) .............................................

2-3

City of E. St. Louis v. Cir. Ct. for the

Twentieth Jud. Cir., St. Clair Cnty., Ill.,

986 F.2d 1142 (7th Cir. 1993)...................

City of Sault Ste. Marie, Mich. v. Andrus,

532 F. Supp. 157 (D.D.C. 1980) ................

College Savings Bank v. Florida Prepaid

Postsecondary Education Expense Bd.,

527 U.S. 666 (1999) ................................... 28-29

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Commonwealth of Massachusetts

v. Mellon,

262 U.S. 447 (1923) ...................................

Compañía de Inversiones Mercantiles,

S.A. v. Grupo Cementos de Chihuahua

S.A.B. De C.V.,

970 F.3d 1269 (10th Cir. 2020) .................

Daimler AG v. Bauman,

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

Douglass v. Nippon Yusen Kabushiki

Kaisha,

46 F.4th 226 (5th Cir. 2022) ................ 18-22, 24

Flatow v. Islamic Republic of Iran,

999 F. Supp. 1 (D.D.C. 1998) ....................

Ford Motor Co. v. Montana Eighth

Jud. Dist. Ct.,

592 U.S. 351 (2021) ...................................

Frontera Res. Azerbaijan Corp. v. State Oil

Co. of Azerbaijan Republic,

582 F.3d 393 (2d Cir. 2009) ....................... 11-13

FTC v. BINT Ops. LLC,

595 F.Supp.3d 740 (E.D. Ark. 2022) ........

Gater Assets Ltd. v. AO Moldovagaz,

2 F.4th 42 (2d Cir. 2021)...........................

Herederos de Roberto Gomez Cabrera, LLC

v. Teck Resources Ltd.,

43 F.4th 1303 (11th Cir. 2022) .................

Hess v. Pawloski,

274 U.S. 352 (1927) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) .......................................

In re Federal Fountain,

165 F.3d 600 (8th Cir. 1999).....................

Ins. Corp. of Ireland v. Compagnie des

Bauxites de Guinee,

456 U.S. 694 (1982) ....................... 11, 22, 24, 27

J. McIntyre Machinery, Ltd. v. Nicastro,

564 U.S. 873 (2011) ....................... 2-3, 19-20, 25

Keeton v. Hustler Magazine, Inc.,

465 U.S. 770 (1984) ...................................

Kiobel v. Royal Dutch Petroleum,

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

Klein v. Cornelius,

786 F.3d 1310 (10th Cir. 2015) .................

Lewis v. Mutond,

62 F.4th 587 (D.C. Cir. 2023) ................... 20, 22

Livnat v. Palestinian Authority,

851 F.3d 45 (D.C. Cir. 2017) .......... 12, 15-16, 24

M/S Bremen v. Zapata Off-Shore Co.,

407 U.S. 1 (1972) .......................................

Mallory v. Norfolk Southern Ry. Co.,

600 U.S. 122 (2023) ................................ 4, 27-28

Mendelsohn v. Meese,

695 F. Supp. 1474 (S.D.N.Y. 1988)...........

Murray’s Lessee v. Hoboken Land

& Imp. Co.,

59 U.S. 272 (1855) .....................................

TABLE OF AUTHORITIES—Continued

Page(s)

National Equipment Rental, Ltd. v.

Szukhent,

375 U.S. 311 (1964) ...................................

The Nereide,

13 U.S. 388 (1815) .....................................

Omni Capital Intern., Ltd. v. Wolff & Co.

Ltd.,

484 U.S. 97 (1987) ................................. 5, 19, 21

Palestine Information Office v. Shultz,

674 F. Supp. 910 (D.D.C.1987) .................

Peay v. BellSouth Med. Assistance Plan,

205 F.3d 1206 (10th Cir. 2000) .................

Pennoyer v. Neff,

95 U.S. 714 (1877) .....................................

Pennsylvania Fire Ins. Co. of Philadelphia

v. Gold Issue Mining & Milling Co.,

243 U.S. 93 (1917) .....................................

Petrowski v. Hawkeye-Security Co.,

350 U.S. 495 (1956) ...................................

Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985) ...................................

Picquet v. Swan,

19 F. Cas. 609 (C.C.D. Mass. 1828) ..........

Price v. Socialist People’s Libyan Arab

Jamahiriya,

294 F.3d 82 (D.C. Cir. 2002) .................. 6, 11-15

Principality of Monaco v. Mississippi,

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

TABLE OF AUTHORITIES—Continued

Page(s)

Puerto Rico Pub. Hous. Admin. v. U.S.

Dep’t of Hous. & Urb. Dev.,

59 F. Supp. 2d 310 (D.P.R. 1999) .............

Republic of Argentina v. Weltover, Inc.,

504 U.S. 607 (1992) ..................... 3, 11-12, 18-19

Shatsky v. Palestine Liberation Org.,

18-cv-12355 (MKV), 2022 WL 826409

(S.D.N.Y. Mar. 18, 2022) .......................... 10, 14

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ................................... 9-11

Toland v. Sprague,

37 U.S. 300 (1838) .....................................

United States v. Cooper Corp.,

312 U.S. 600 (1941) ...................................

United States v. Swiss Am. Bank,

191 F.3d 30 (1st Cir. 1999) .......................

Virgin Islands v. Miller,

53 V.I. 162 (V.I. Super. 2010) ...................

World–Wide Volkswagen Corp. v.

Woodson,

444 U.S. 286 (1980) ...................................

CONSTITUTION

U.S. Const. art. I, § 8 ....................................

U.S. Const. art. I, § 9 ....................................

U.S. Const. art. I, § 10 ..................................

U.S. Const. art. III, § 2 .................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Const. art. VI, cl. 2 ...............................

U.S. Const. amend. V ...................................

U.S. Const. amend. XI ..................................

U.S. Const. amend. XIV ...............................

STATUTES

18 U.S.C. § 2334 ...........................................

Anti-Terrorism Clarification Act, Pub. L.

No. 115-253, § 4, 132 Stat. 3183, 3184 .....

Promoting Security and Justice for Victims

of Terrorism Act of 2019, Pub. L. 116-94,

div. J., tit. IX, § 903, 133 Stat. 2534, 308285 ................................................................. 2, 10

TREATIES AND INTERNATIONAL

INSTRUMENTS

Agreement on the Gaza Strip and the

Jericho Area, May 4, 1994, Isr.-P.L.O., 33

I.L.M. 622 (1994)......................................... 8, 13

G.A. Res. 3237, 29 U.N. GAOR, 29th Sess.,

Supp. No. 31, U.N. Doc. A/9631 (1974) ....

Declaration of Principles on Interim Self–

Government Arrangements, Sept. 19, 1993,

Isr.-P.L.O., 32 I.L.M. 1525 (1993) ......... 8, 13-14

Interim Agreement on the West Bank & the

Gaza Strip, Sept. 28, 1995, Isr.-P.L.O.,

36 I.L.M. 551, 559 .............................. 8-9, 13, 15

viii

TABLE OF AUTHORITIES—Continued

RULES

Page(s)

Fed. R. Civ. P. 4(k) ....................................... 21-22

COURT FILINGS

Chamber Br., CC/Devas (Multimedia) Ltd.

v. Antrix Corp., Ltd., (No. 23-1201) (U.S.

Dec. 11, 2024) ............................................

House of Representatives Br., Fuld v.

Palestine liberation Organization, (No.

24-20) (U.S. Aug. 8, 2024) ........................

PA Mtn. to Dismiss Br., Livnat v.

Palestinian Authority, (No. 13-498) (E.D.

Va. June 5, 2013), ECF No. 6 ...................

Petn. for Cert., Fuld v. Palestine Liberation

Org., (No. 24-20) (U.S. July 3, 2024) ........

U.S. Br., 32 County Sovereignty Committee

v. United States Department of State, 292

F.3d 797 (D.C. Cir. 2002) (No. 01-1270),

2002 WL 34245980 ................................... 9-10

U.S. Br., National Council of Resistance of

Iran v. Department of State, 251 F.3d 192

(D.C. Cir. 2001) (Nos. 99-1438, 99-1439),

2000 WL 35576228 ...................................

U.S. Br., Palestine Information Office v.

Shultz, 853 F.2d 932 (D.C. Cir. 1988) (No.

87-5398) .....................................................

U.S. Br., People’s Mojahedin Organization

of Iran v. Department of State, 182 F.3d

17 (D.C. Cir. 1999) (No. 97-1648), 1998

WL 35239624 ............................................

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Austen Parrish, Foreign Nations, Constitutional Rights and International Law, 88

Fordham L. Rev. Online 88 (2019) ...........

4 Blackstone’s Commentaries on the Laws

of England (Chicago 1979)........................

Constitutionality of Closing the Palestine

Info. Off., an Affiliate of the Palestine

Liberation Org., 11 Op. O.L.C. 104

(1987) ........................................................ 7-9, 14

Fed. R. Civ. P. 4 advisory committee’s note

(1993) .........................................................

Gary B. Born & Peter B. Rutledge,

International Civil Litigation in United

States Courts (7th ed. 2023) ............... 20, 24, 26

Intelligence Activities – The National

Security Agency and Fourth Amendment

Rights: Hearings on S. Res. 21 Before

the Senate Select Committee to Study

Governmental Operations with Respect to

Intelligence Activities, 94th Cong., 1st

Sess. (1975) ...............................................

Jim Zanotti, Cong. Research Serv., U.S.

Foreign Aid to the Palestinians (Dec. 12,

2018), available at https://sgp.fas.org/crs/

mideast/RS22967.pdf ................................

Kent Greenfield, In Defense of Corporate

Persons, 30 Const. Comment. 309 (2015).

TABLE OF AUTHORITIES—Continued

Page(s)

Letter from Robert Raben, Dep’t of Justice,

to Frank H. Murkowski, Chairman,

Committee on Energy and Natural

Resources, United States Senate (Jan.

18, 2001) ....................................................

Mut. Consent Provisions in the Guam

Commonwealth Legis., 1994 WL 16193765

(O.L.C. July 28, 1994) ...............................

Presidential Authority to Settle the Iranian

Crisis, 4A Op. O.L.C. 248 (1980) ..............

Remarks on the Israeli-Palestinian Declaration of Principles, 2 Pub. Papers 1463

(Sept. 10, 1993) (Exec. Off. of the Pres.),

1993 WL 13967468 ...................................

Stephanie Ferguson Melhorn et al., Small

Business Data Center, U.S. Chamber of

Commerce (May 20, 2024), https://www.

uschamber.com/small-business/smallbusiness-data-center .................................

Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L.

Rev. 1703 (2020)........................................

INTEREST OF THE AMICUS CURIAE 1

The Chamber of Commerce of the United States of

America (“Chamber”) is the world’s largest business

federation. The Chamber represents approximately

300,000 direct members and indirectly represents the

interests of more than three million companies and

professional organizations of every size, in every

industry sector, and from every region of the country.

An important function of the Chamber is to represent

the interests of its members in matters before

Congress, the Executive Branch, and the courts.

The Chamber unequivocally condemns acts of

terrorism in all forms, including those committed

against American citizens at issue in this case.

Respondents should be – and are – answerable in

United States Courts for the “pay for slay” policy that

Petitioners describe, that the political branches seek to

address, and that the Chamber finds abhorrent. See

Petn. for Cert. at 13, Fuld v. Palestine Liberation Org.,

(No. 24-20) (U.S. July 3, 2024). Specifically, Respondents

are subject to the in personam jurisdiction of the

United States Courts for their actions, and the

exercise of that jurisdiction does not offend the Due

Process Clause of the Fifth Amendment.

While that is the topline conclusion, the basis upon

which this Court reaches that conclusion carries

important implications for the American business

community. American businesses rely on predictable

rules governing personal jurisdiction. Those rules

provide essential guidance about where disputes can

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

part and no entity or person, aside from amicus, its members, or

its counsel, made any monetary contribution intended to fund the

preparation or submission of this brief.

be heard whether in matters where American businesses are seeking relief or named as defendants.

Consistent with those interests, the Chamber has

participated in many cases lying at the intersection

of foreign affairs and the constitutional limits on a

court’s exercise of personal jurisdiction. Such cases

include CC/Devas (Multimedia) Ltd. v. Antrix Corp.,

Ltd., (No. 23-1201) (“Devas”) and J. McIntyre Machinery,

Ltd. v. Nicastro, 564 U.S. 873 (2011). Following its

positions articulated in those and other cases, the

Chamber files this brief to offer its unique perspective

on how to resolve this case in a manner that takes into

consideration the broader implications of any rule of

decision.

SUMMARY OF ARGUMENT

The Chamber agrees with the United States that

this Court should decide this case narrowly,

without addressing broad questions of how the Fifth

Amendment’s Due Process Clause restrains federal

courts’ exercise of personal jurisdiction. See Gov’t Br.

at 47.

Both petitions concern a facial challenge to a unique

federal statute specifically designed to overcome

jurisprudential impediments to the exercise of

personal jurisdiction over the Palestinian Authority

(“PA”) and the Palestine Liberation Organization

(“PLO,” and together with the PA, “Respondents”) in

cases involving acts of terrorism against United States

nationals. The sole question presented is whether the

exercise of personal jurisdiction against Respondents

pursuant to the Promoting Security and Justice for

Victims of Terrorism Act of 2019, Pub. L. 116-94, div.

J., tit. IX, § 903, 133 Stat. 2534, 3082-85 (“PSJVTA”),

violates the Due Process Clause of the Fifth

Amendment. The answer to that question is “no.”

The straightforward reason is that Respondents are

not entitled to the protections of the Due Process

Clause. As the Chamber has explained in its brief in

Devas, due process protections do not extend to foreign

sovereign governments or their alter egos. Although

Palestine is not a foreign sovereign, the reasons

advanced in the Chamber’s brief in Devas support the

same conclusion for Respondents. For decades, the

Executive Branch has taken this view and concluded

that foreign political entities, including Respondents

specifically, are not entitled to the Fifth Amendment’s

protections. Nothing in the decision below offers a

persuasive reason to depart from the Executive

Branch’s historical position. This reason alone is

sufficient to resolve these appeals in Petitioners’ favor

and to reverse the judgment below.

The Court should go no further. It is not necessary

in this case to examine the precise relationship

between the Fifth and Fourteenth Amendment limits

on personal jurisdiction. That question involves difficult

methodological debates with significant repercussions

that cannot be fully fleshed out here. If this Court

nevertheless opts to delve into that question, it should

formally adopt the approach suggested by this Court

in Republic of Argentina v. Weltover, Inc., 504 U.S. 607,

619 (1992), and the plurality opinion in Nicastro, 564

U.S. 873, and consistently employed by the federal

appellate courts: the Fifth Amendment requires that

a defendant have minimum contacts with the United

States as a whole. Sound reasons counsel against a

more radical approach never embraced by this Court

or any federal appellate court, that the Fifth Amendment

only affords defendants the process authorized by

Congress and imposes no independent limits on the

personal jurisdiction of the federal courts.

Likewise, it is not necessary to examine whether the

consent doctrine might support the exercise of jurisdiction. The judges dissenting from rehearing en banc

suggested that this Court’s decision in Mallory v.

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

be read to support the exercise of personal jurisdiction

based on the PSJVTA’s “deemed consent” provisions.

Pet. App. 246a-248a, 309a-310a. But Mallory did not

grant Congress (or state legislatures) a blank check to

equate any activity with a blanket consent to allpurpose jurisdiction. See Gov’t Br. at 24 (“That does

not mean anything goes.”) (quoting Ford Motor Co. v.

Montana Eighth Jud. Dist. Ct., 592 U.S. 351, 362

(2021)). And the unique context of this statute makes

this case a far from ideal vehicle to begin defining the

contours of that doctrine post Mallory.

In sum, this Court can and should take the straightforward route to resolving this case. Respondents, like

States of the Union and foreign sovereign governments, are not entitled to the protections of the Due

Process Clause. This Court thus need not consider the

downstream question whether an entity entitled to the

protections of that Clause could be subjected to

personal jurisdiction under the statute as a matter of

contacts or consent. The exercise of personal jurisdiction over these Respondents pursuant to this statute

comports with the Constitution.

ARGUMENT

Any exercise of personal jurisdiction requires proof

of three propositions. First, “the procedural requirement

of service of summons must be satisfied.” Omni

Capital Intern., Ltd. v. Wolff & Co. Ltd., 484 U.S. 97, 104

(1987) Second, the exercise of personal jurisdiction

requires a statutory authorization. Keeton v. Hustler

Magazine, Inc., 465 U.S. 770, 774-75 (1984). Third, any

statutory authorization of personal jurisdiction must

comport with the Constitution.

As the courts below correctly recognized, only the

third requirement is at issue here. Respondents have

been properly served, and the PSJVTA authorizes

personal jurisdiction over these Respondents. Pet.

App. 16a.

The court below framed its assessment of the

constitutional question by reference to three categories:

general jurisdiction, specific jurisdiction and consent.

That framing elided a critical antecedent issue,

namely, whether Respondents were entitled to the

protections of the Due Process Clause at all. See

Pet. App. 153a-154a. They are not. For this reason

alone, the constitutional inquiry ends.

Further

examination of the three above-referenced categories

is not necessary.

I. Respondents are not “persons” entitled to

due process under the Fifth Amendment .

“Foreign states” are not persons entitled to the

protections of the Due Process Clause of the Fifth

Amendment. See Chamber Br. at 4-25, Devas (No. 231201) (U.S. Dec. 11, 2024). This rule can easily be

extended to foreign political entities like Respondents.

See Gov’t Br. at 19 (“[R]espondents’ status as nonsovereign foreign entities weighs strongly in favor of

the [PSJVTA’s] constitutionality.”). Considerations of

text, history, and precedent all support this conclusion.

Text. While the Constitution does not define the

term “person,” the use of the term throughout the

document reveals that the Framers did not intend for

it to encompass certain governmental entities, including

“foreign states” (U.S. Const. art. I, § 9; id. art. III, § 2;

id. amend. XI), “foreign nations,” (id. art. I, § 8) “foreign

Power[s],” (id. art. I, § 10), and “States” of the Union

(id. art. I, § 8; id. amend XIV). The repeated and

deliberate use of these terms throughout the

Constitution to refer to governmental bodies demands

the conclusion that, had the Framers intended for the

Fifth Amendment’s protections to extend to these

categories of litigants, it would have include such

terms (along with “persons”) among the parties

entitled to the protections set forth therein. Compare

id. amend. V, with id. art. I, §§ 8, 9, 10, id. art. III, §2,

id. amend. XI, and id. amend XIV.

This conclusion comports with the commonly held

belief that the Constitution was not intended to

protect governments, especially foreign ones. As one

scholar succinctly summarized the point: “the opposite

of a constitutional right is a government power.” Kent

Greenfield, In Defense of Corporate Persons, 30 Const.

Comment. 309, 316 (2015). It would therefore “be

quite strange to interpret the Due Process Clause as

conferring upon [Respondents] rights and protections

against the power of federal government.” Price v.

Socialist People’s Libyan Arab Jamahiriya, 294 F.3d

82, 97 (D.C. Cir. 2002) (emphasis in original).

Because the Fifth Amendment seeks to protect

persons from the exercise of an unlawful government

power, foreign political entities – regardless of

sovereignty status – are not, as a textual matter,

entitled to its protection.

History. What text suggests, history confirms. For

fifty years, the Executive Branch has been steadfast in

its pronouncement that the Constitution was not

intended to apply to entities like Respondents. In

1975, Attorney General Levi testified that because the

preamble of the Constitution refers to “We the People,”

it could “be urged that it was not meant to apply to

foreign nations, their agents and collaborators.”

Intelligence Activities – The National Security Agency

and Fourth Amendment Rights: Hearings on S. Res. 21

Before the Senate Select Committee to Study

Governmental Operations with Respect to Intelligence

Activities, 94th Cong., 1st Sess. 66, 74 (1975)

(statement of Attorney General Edward H. Levi). Five

years later, the Office of Legal Counsel sought to

clarify the distinction between a foreign individual

and a foreign government, explaining that the former

may have Fifth Amendment rights, whereas the latter

does not. See Presidential Authority to Settle the

Iranian Crisis, 4A Op. O.L.C. 248, 260 n.9 (1980) (“A

foreign nation [ ], unlike a foreign national, does not

have rights under the Fifth Amendment.”).

In 1987, the Office of Legal Counsel directly spoke to

the constitutional rights of the PLO in the face of the

federal government’s decision to close the Palestine

Information Office. The opinion declared that the

“PLO [ ], as a foreign political entity, has no

constitutional rights,” and that this conclusion “flows

inexorably from the nature of foreign sovereigns and

their interaction with the United States as a foreign,

co-equal sovereign.” Constitutionality of Closing the

Palestine Info. Off., an Affiliate of the Palestine

Liberation Org., 11 Op. O.L.C. 104, 106 (1987). “Simply

put, a foreign political entity such as the PLO, ‘lies

outside the structure of the union.’” Id. at 107 (citing

Principality of Monaco v. Mississippi, 292 U.S. 313, 330

(1934)). It “[has undertaken] no general obligation to

abide by the constitutional norms to which the federal

government and the several states are subject, nor are

there any effective means to place [it] on parity with

the United States or the states for purposes of

enforcement of particular norms.” 11 Op. O.L.C. at 107

(internal citations omitted).

Recognizing that “the PLO is not a sovereign

nation,” the Executive Branch further dispensed with

any suggestion that this lack of status would “bring it

within the constitutional fold.” Id. at 120 n.7. The

Executive Branch explained, “[a]lthough the United

States chooses not to recognize the PLO as [a

sovereign state], the PLO nonetheless interacts with

the United States as a foreign political entity within

the structure of international law,” and “is reported to

have diplomatic relations with approximately one

hundred countries throughout the world.” Id. at 11920 (citing G.A. Res. 3237, 29 U.N. GAOR, 29th Sess.,

Supp. No. 31, at 4, U.N. Doc. A/9631 (1974)). The same

is true for the PA, which was created by treaty under

the Gaza-Jericho Agreement and Oslo Accords to act

as the interim civil government of defined territory.

Pet. App. 6a, 61a; Declaration of Principles on Interim

Self–Government Arrangements (“Oslo I”) art III, Sept.

19, 1993, Isr.-P.L.O., 32 I.L.M. 1525, 1529-30 (1993);

Agreement on the Gaza Strip and the Jericho Area

(“Gaza-Jericho Agreement”), May 4, 1994, Isr.-P.L.O.,

33 I.L.M. 622, 626 (1994); Interim Agreement on the

West Bank & the Gaza Strip (“Oslo II”) art I, Sept. 28,

1995, Isr.-P.L.O., 36 I.L.M. 551, 559 (acknowledging

“Palestinian Authority [as] established in accordance

with the Gaza-Jericho Agreement”). Because the Oslo

Accords constrain the PA’s authority within the

identified territory, the PLO conducts foreign affairs

on behalf of the Palestinian People and is a Permanent

Observer to the United Nations. Pet. App. 6a, 61a; Oslo

II art IX, 36 I.L.M. at 561. Respondents may therefore

be subjected to the exercise of the federal government’s

“necessary and inherent power to preclude foreign

encroachment.” 11 Op. O.L.C. at 120. As a result, the

Executive Branch concluded that “[t]he PLO qua PLO,

[a]s a foreign political entity, does not itself enjoy

constitutional protection.” Id.

Consistent with Attorney General Levi’s testimony

and the Office of Legal Counsel’s opinions, the United

States has appeared in numerous federal cases to

defend its view that entities like Respondents are not

entitled to constitutional due process. See, e.g., U.S. Br.

44, Palestine Information Office v. Shultz, 853 F.2d 932

(D.C. Cir. 1988) (No. 87-5398) (“Foreign entities such

as the PLO obviously do not have due process rights

since they are not part of our constitutional scheme.”

(citing South Carolina v. Katzenbach, 383 U.S. 301,

323-24 (1966))); U.S. Br., People’s Mojahedin Organization

of Iran v. Department of State, 182 F.3d 17 (D.C. Cir.

1999) (No. 97-1648), 1998 WL 35239624, at *23 (“[T]he

[People’s Mojahedin Organization of Iran] is admittedly a

foreign political organization, and therefore is not entitled

to constitutional protection under the Due Process

Clause.”); U.S. Br., National Council of Resistance of

Iran v. Department of State, 251 F.3d 192 (D.C. Cir.

2001) (Nos. 99-1438, 99-1439), 2000 WL 35576228, at

*35 (“Indeed, with [the PLO], as with foreign nations,

the Executive Branch must be able to act swiftly and

on the basis of classified or confidential information,

without providing the panoply of due process protections that are enjoyed by persons in the United

States.”); U.S. Br., 32 County Sovereignty Committee v.

United States Department of State, 292 F.3d 797 (D.C.

Cir. 2002) (No. 01-1270), 2002 WL 34245980, at *42 n.8

(“[The Executive Branch] continue[s] to believe that

foreign political organizations . . . are not entitled to

claim the protections of the United States Constitution.”).

In sum, the Executive Branch has made clear that

Respondents should not be afforded Due Process

rights under the Fifth Amendment.

Notably, in 1994, the year after the PA was

established, OLC took the position that domestic nonsovereign governing bodies, like U.S. territories, also

lacked due process rights. See Mut. Consent Provisions

in the Guam Commonwealth Legis., 1994 WL 16193765,

at *5 (O.L.C. July 28, 1994) (“[T]he rationale of

[Katzenbach]” is fully applicable to other “governmental

bodies,” even when they are not “states or instrumentalities of states”); accord Letter from Robert

Raben, Dep’t of Justice, to Frank H. Murkowski,

Chairman, Committee on Energy and Natural Resources,

United States Senate 9 n.11 (Jan. 18, 2001) (“While

Katzenbach was concerned with a State, its rationale

suggests that a governmental body . . . could not assert

rights under the Due Process Clause.”). It would be

odd to suggest that foreign non-sovereign governing

bodies, like Respondents, would have greater due process

rights than domestic bodies with comparable authority.

And Congress has legislated consistent with these

pronouncements, providing express statutory authority

for courts to establish personal jurisdiction over

Respondents. See Anti-Terrorism Clarification Act

(“ATCA”), Pub. L. No. 115-253, § 4, 132 Stat. 3183, 3184

(adding 18 U.S.C. § 2334(e)), and PSJVTA. Pub. L.

116-94, div. J, tit. IX, § 903, 133 Stat. 3082; see generally

Shatsky v. Palestine Liberation Org., 18-cv-12355

(MKV), 2022 WL 826409, at *2 (S.D.N.Y. Mar. 18, 2022)

(discussing chronology of legislative response to courts’

refusal to exercise jurisdiction over Respondents). The

collective judgment of the political branches over time

supports the conclusion that Respondents are not

entitled to the protections of the Due Process Clause.

Precedent/Purpose. This Court’s precedents buttress

that conclusion. In Katzenbach, this Court held that

“the word ‘person’ in the context of the Due Process

Clause of the Fifth Amendment cannot, by any

reasonable mode of interpretation, be expanded to

encompass the States of the Union.” 383 U.S. at 323.

The underlying rationale was that the Fifth Amendment’s

Due Process Clause “recognizes and protects an

individual liberty interest,” Ins. Corp. of Ireland v.

Compagnie des Bauxites de Guinee, 456 U.S. 694,

702 (1982), not a sovereign government’s interest.

Subsequently in Weltover, this Court cited Katzenbach

to suggest that a “foreign state” is likely not a “person”

entitled to due process. 504 U.S. at 619. Following

Weltover’s lead, the D.C. Circuit and Second Circuit

have since affirmatively held that “foreign states” are

not persons entitled to due process protection. Price, 294

F.3d at 96; Frontera Res. Azerbaijan Corp. v. State Oil

Co. of Azerbaijan Republic, 582 F.3d 393, 399 (2d Cir.

2009); Gater Assets Ltd. v. AO Moldovagaz,

2 F.4th 42, 49 (2d Cir. 2021).

This development had an unusual effect. Before

Weltover, courts in these Circuits did not hesitate to

conclude that if States of the Union are not “persons”

then neither are foreign political entities like Respondents. See Mendelsohn v. Meese, 695 F. Supp. 1474, 1481

(S.D.N.Y. 1988) (“[T]he PLO, an organization whose

status, while uncertain, lies outside the constitutional

system. It has never undertaken to abide by United

States law or to accept the constitutional plan. . . . No

foreign entity of its nature could be expected to do so.”

(internal quotations omitted)); Palestine Information

Office v. Shultz, 674 F. Supp. 910 (D.D.C.1987) (“If the

States of the Union have no due process rights, then

[the Palestine Information Office as] a ‘foreign mission’

qua ‘foreign mission’ surely can have none.”). After

Weltover and its progeny (e.g., Price, Frontera), some

courts drew too fine a line and concluded that any

foreign entity apart from a sovereign government

enjoyed due process rights. See Pet. App. 153a-154a;

Livnat v. Palestinian Authority, 851 F.3d 45, 48-53

(D.C. Cir. 2017).

This jurisprudential shift was a mistake. Underlying

this shift is a distorted notion of sovereignty and its

significance in the due process inquiry. Specifically,

the Second and D.C. Circuits appear to believe that if

a foreign political entity is not recognized as sovereign,

then it must be a “person” possessing due process

rights. See Pet. App. 153a; Livnat, 851 F.3d at 49.

This false dichotomy lacks any jurisprudential or

conceptual rationale. For instance, political subdivisions,

municipalities, and U.S. territories are not sovereigns,

yet also cannot claim due process rights. See, e.g., City

of E. St. Louis v. Cir. Ct. for the Twentieth Jud. Cir., St.

Clair Cnty., Ill., 986 F.2d 1142, 1144 (7th Cir. 1993)

(“Municipalities . . . are not ‘persons’ within the

meaning of the Due Process Clause.”); City of Sault Ste.

Marie, Mich. v. Andrus, 532 F. Supp. 157, 167-68

(D.D.C. 1980) (concluding municipality could not

assert due process rights under the Fifth Amendment

because “a state cannot confer a constitutional status

. . . which the state does not itself enjoy”); Puerto Rico

Pub. Hous. Admin. v. U.S. Dep’t of Hous. & Urb. Dev.,

59 F. Supp. 2d 310, 325 (D.P.R. 1999) (concluding

instrumentalities of the Commonwealth of Puerto Rico

were “non-persons” for purposes of their constitutional

claims); Virgin Islands v. Miller, 53 V.I. 162, 172 (V.I.

Super. 2010) (concluding Virgin Islands “[g]overnment

is not a person for purposes of due process”).

The PA, as a local “non-sovereign government,” is

roughly analogous to a municipal civil government,

Pet. App. 142a, possessing only those limited powers

afforded it under the Oslo Accords. See Oslo I art III,

32 I.L.M. at 1529-30 (“Israel shall transfer authority

. . . from the Israeli military government and its Civil

Administration to the [PA] . . . on the following

spheres: education and culture, health, social welfare,

direct taxation, and tourism.”); Gaza-Jericho Agreement

art III, 33 I.L.M. at 627; Oslo II art I, 36 I.L.M. at 559.

And the PLO is recognized, domestically and internationally, as the sole non-sovereign representative

of the Palestinian people. Oslo I, 32 I.L.M. at 1527;

Oslo II, 36 I.L.M. at 558 (identifying PLO as “the

representative of the Palestinian people”); Pet. App. 6a,

61a (acknowledging PLO holds Permanent Observer

status to the United Nations on behalf of the

Palestinian people). It would be illogical to conclude

that foreign non-sovereign governments are somehow

differently situated with respect to personhood under

our Constitution than domestic non-sovereign

governments. See Flatow v. Islamic Republic of Iran,

999 F. Supp. 1, 20-21 (D.D.C. 1998).

Moreover, the dichotomy does not comport with the

reasoning of the very courts making it. As those courts

have observed, it would be “highly incongruous to

afford greater Fifth Amendment rights to foreign

nations, who are entirely alien to our constitutional

system, than are afforded to the states, who help make

up the very fabric of that system.” Price, 294 F.3d at

96-97; Frontera, 582 F.3d at 399. It would be even more

“incongruous” to place entities like Respondents—who

the Executive Branch and Congress agree are not

entitled to constitutional protections of any kind—“in

a more favored position with respect to the safeguards

of due process than both U.S. states and foreign

sovereigns with whom the political branches have

established friendly relations.” Shatsky, 2022 WL

826409 at *6; 11 Op. O.L.C. at 120 n.7 (“It would be

anomalous if the Executive’s decision to withhold

recognition from a foreign political entity – with respect

to which it has complete discretion – invested that

entity with rights greater than those enjoyed by

friendly sovereigns present in the United States.”).

Such an outcome “would distort the very notion of

‘liberty’ that underlies the Due Process Clause.” See

Price, 294 F.3d at 99.

Furthermore, “interpreting due process rights to

hinge on diplomatic recognition [and sovereign

immunity] (or rather a lack thereof)” would create an

unreliable rule. See House of Representatives Br. at

14, Fuld v. Palestine liberation Organization, (No. 2420) (U.S. Aug. 8, 2024). Specifically, “the Executive

alone would be able to strip, and bestow, important

constitutional protections on a whim.” Id.; United

States v. Cooper Corp., 312 U.S. 600, 604–05 (1941)

(concluding “there is no hard and fast rule of exclusion”

of the sovereign). Indeed, as a direct result of the Oslo

Accords, the office of then-President Bill Clinton

publicly declared the United States’ intent, at that

time, to resume diplomatic relations with the PLO.

Remarks on the Israeli-Palestinian Declaration of

Principles, 2 Pub. Papers 1463, 1464 (Sept. 10, 1993)

(Exec. Off. of the Pres.), 1993 WL 13967468, at *1 (“As

a result and in light of [Oslo I], I have decided to

resume the dialog and the contacts between the

United States and the PLO.”). As the dissent from

rehearing en banc observed, “[f]undamental constitutional

rights are not typically so contingent.” Pet. App. 238a.

The counterargument by the D.C. Circuit was that

non-sovereign governments cannot be analogized to

sovereigns for purposes of the Due Process analysis

because they are not the “juridical equals” of the

United States government and do not possess the

same quantum of governmental rights and privileges

otherwise held by recognized states in the domestic

and international spheres. Livnat, 851 F.3d at 51

(concluding that as a non-sovereign, the PA lacks the

ability to claim sovereign immunity or the “power to

secure its territory against external threats,” Oslo II

art. X, 36 I.L.M. at 561, and because the PA only

possesses a “limited” number of rights in international

arena, it “cannot rely on comity and international-law

protections to the exclusion of domestic law”). This

line of reasoning quickly unravels.

An argument rooted in the “quantum of rights”

Respondents possess on the international stage says

nothing about whether they are “persons” within the

meaning of the Constitution’s Due Process Clause.

Indeed, similar distinctions could be drawn between

exclusively sovereign governments whom this Court

has recognized are not persons within the meaning of

that Clause. The federal government, for example, has

certain rights that are greater relative to the States of

the Union, which have greater rights relative to

foreign nations. U.S. Const. art. VI, cl. 2; see also

Commonwealth of Massachusetts v. Mellon, 262 U.S.

447, 485 (1923) (delineating when States of the Union

versus the United States has standing to represent

American citizens as parens patriae); Price, 294 F.3d at

96 (concluding foreign states have an even weaker

claim to personhood status than States of the Union).

Finally, even if foreign political entities might

possess fewer rights and special privileges than

recognized sovereigns, see Livnat 851 F.3d at 51, they

are not powerless to defend their interests. Respondents

are perfect examples. The PA has a president and

ministers and is the self-proclaimed “government of a

State[.]” See PA Mtn. to Dismiss Br. at 17, Livnat v.

Palestinian Authority, (No. 13-498) (E.D. Va. June 5,

2013), ECF No. 6. The PLO conducts foreign affairs

and maintains dozens of ‘embassies, missions, and

delegations around the world,’ including a UN mission

office located in New York City.” See Pet. App. 142a. In

short, Respondents “are sophisticated international

organizations with billion-dollar budgets . . . that

govern a territory recognized as a sovereign state by

many other countries.” Id. 238a; Jim Zanotti, Cong.

Research Serv., U.S. Foreign Aid to the Palestinians 1

(Dec. 12, 2018), available at https://sgp.fas.org/crs/

mideast/RS22967.pdf (“Bilateral assistance to the

Palestinians since 1994 has totaled more than $5

billion, and has been a key part of U.S. policy to . . .

strengthen the West Bank-based PA vis-à-vis Hamas

in Gaza.”). One can hardly argue that these entities

would be rendered defenseless without the protections

of the Fifth Amendment’s Due Process Clause.

Put simply, while the Executive Branch has not

recognized Palestine as a nation-state, Respondents

remain, as the United States acknowledges here, “nonsovereign foreign entities exercising governmental

functions.” Gov’t Br. at 34. As a consequence, text,

history and precedent continue to support the Executive

Branch’s historically held view that such entities lack

due process rights.

II. It is not necessary for this Court to

examine other aspects of the Fifth

Amendment limits on the exercise of

personal jurisdiction. Even if it did so, it

should still reverse and remand.

This Court could easily dispose of these petitions

by holding that Respondents are not “persons” within

the meaning of the Due Process Clause, a conclusion

that is logically antecedent to any of the downstream

arguments about how that Clause might otherwise

apply. The Court thus need not and should not go

further. Specifically, it need not definitively decide the

relationship between the Fifth Amendment and the

Fourteenth Amendment limits on the exercise of

personal jurisdiction or demarcate the outer boundaries of

the “consent” doctrine. But if the Court is inclined to

address these issues, it should adopt the nationwide

contacts test universally employed by the federal

appellate courts in Fifth Amendment analysis and

reject a boundless construction of the consent doctrine

suggested by the lower court judges dissenting from

the denial of en banc rehearing. If it chooses to explore

these issues, it should still reverse and remand.

A. The Fifth Amendment imposes different

limits on the exercise of personal

jurisdiction than does the Fourteenth

Amendment.

The Fifth and the Fourteenth Amendments impose

limits on the exercise of personal jurisdiction. The

provisions have “materially identical” language.

Herederos de Roberto Gomez Cabrera, LLC v. Teck

Resources Ltd., 43 F.4th 1303,1308 (11th Cir. 2022)

(Newsom, J.); see also Douglass v. Nippon Yusen

Kabushiki Kaisha, 46 F.4th 226, 243 (5th Cir. 2022) (en

banc) (Ho, J., concurring) (“There’s no denying the

textual parallel between the Fifth and Fourteenth

Amendment.”). And this Court has long recognized

that the Fourteenth Amendment’s Due Process Clause

requires minimum contacts with the sovereign State

exercising personal jurisdiction. If the Court decides

to reach the question, it should hold that the Fifth

Amendment’s Due Process Clause does too. The only

material difference is that the Fifth Amendment’s

analysis focuses on minimum contacts with the United

States as the relevant sovereign. Virtually every

federal appellate court has adopted this approach.

Justice Scalia’s opinion for a unanimous Court in

Weltover supplies the starting point for any analysis.

504 U.S. 607. Weltover represents one of the first cases

to reach this Court in the post-International Shoe era

where the exercise of personal jurisdiction involved a

case arising under federal law. Weltover assumed,

without deciding, that the foreign state (Argentina)

was entitled to due process. Id. at 619. After making

that assumption, Weltover went on to explain that

Argentina possessed “minimum contacts” that would

satisfy the relevant constitutional standard. By

issuing negotiable debt instruments denominated in

United States dollars and payable in New York and by

appointing a financial agent in that city, Argentina

“purposefully avail[ed] itself of the privilege of

conducting activities within the [United States].” Id.

at 619-20 (emphasis added). Weltover’s bracketed

reference to the “United States” necessarily implied

two propositions – (1) that the minimum contacts

framework governs the constitutional inquiry under

the Fifth Amendment and (2) that the relevant “forum”

for contacts analysis purposes is the United States (as

opposed to a State of the Union).

Since Weltover, this Court in several subsequent

decisions has characterized the contours of the Fifth

Amendment test as an “open” question. Virtually all

of those cases arose out of state court or involved

federal courts borrowing state long-arm statutes and,

thus unlike Weltover, did not confront the Fifth

Amendment question. See Bristol-Myers Squibb Co. v.

Superior Ct. of Calif., 582 U.S. 255, 269 (2017);

Nicastro, 564 U.S. at 885 (plurality opinion) Omni

Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97,

102 n.5, (1987); Asahi Metal Indus. Co. v. Superior

Ct. of Cal., 480 U.S. 102, 113 n.* (1987). None

questioned Weltover’s analytic framework under the

Fifth Amendment. Moreover, the “open” question

about that framework identified in several of those

opinions was whether the Fifth Amendment requires

minimum “nationwide” contacts, not whether the Fifth

Amendment requires any “minimum contacts” to the

United States at all. See, e.g., Asahi, 480 U.S. at 113

n.*; see also Douglass, 46 F. 4th at 240 n.26.

To the extent Weltover did not supply a definitive

holding on the matter, other opinions of this Court

track its essential framework. This Court’s plurality

opinion in Nicastro offers the fullest explication.

564 U.S. 873. The Nicastro plurality identified two

interrelated principles from a survey of its personal

jurisdiction jurisprudence. The first principle is that

“personal jurisdiction requires a forum-by-forum, or

sovereign-by-sovereign, analysis.” Id. at 884. See also

Fuld Petrs. Br. at 42-43. The second principle is that

“[b]ecause 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.” Id.

Both before and after Nicastro, decisions of the

federal appellate courts have consistently tracked

these twin principles. Specifically, consistent with

Nicastro’s sovereign-specific analysis, virtually every

federal appellate court has held that, as a constitutional matter, a defendant must have sufficient

contacts with the United States a whole. See Gary B.

Born & Peter B. Rutledge, International Civil Litigation in

United States Courts 224-29 (7th ed. 2023) (collecting

cases). 2 This is “the law as it has been unanimously

With one possible exception, every federal appellate court has

a reported opinion applying the nationwide contacts test to the

Fifth Amendment inquiry. See Lewis v. Mutond, 62 F.4th 587,

592 n.2 (D.C. Cir. 2023) (reaffirming nationwide contacts test and

citing decisions from the First, Second, Third, Fourth, Fifth,

Sixth, Seventh, Ninth, Eleventh and Federal Circuits); Douglass,

46 F.4th at 239 & n. 24 (adopting nationwide contacts test and

citing cases from the Second, Sixth, Seventh, Eleventh, Federal

and D.C. Circuits). Jurisprudence in the Eighth Circuit is scant,

but its most authoritative opinion, In re Federal Fountain, 165

F.3d 600 (8th Cir. 1999) (en banc), has been interpreted to apply

a nationwide contacts test. See, e.g., FTC v. BINT Ops. LLC, 595

F.Supp.3d 740, 746-47 (E.D. Ark. 2022).

The lone exception might be the Tenth Circuit. Peay v.

BellSouth Med. Assistance Plan, 205 F.3d 1206 (10th Cir. 2000),

could be read to require “constitutionally significant inconvenience.”

Klein v. Cornelius, 786 F.3d 1310 (10th Cir. 2015). But see

accepted among the circuit courts.” Douglass, 46 F.4th

at 232 n.8. This “nationwide contacts” test operates in

cases arising under federal law either where the

federal statute supplying the basis for federal question

jurisdiction authorizes nationwide (or worldwide)

service of process or, in cases of certain federal claims

lacking a service of process provision and involving

foreign defendants, under Federal Rule of Civil

Procedure 4(k)(2). See BNSF Ry. Co. v. Tyrrell, 581 U.S.

402, 409 (2017); Omni Capital, 484 U.S. at 106–107.