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 & 24-151

IN THE

Supreme Court of the United States

MIRIAM FULD, ET AL.

PALESTINE LIBERATION ORGANIZATION, ET AL.

UNITED STATES

PALESTINE LIBERATION ORGANIZATION, ET AL.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE

AMERICAN ASSOCIATION FOR JUSTICE

IN SUPPORT OF PETITIONERS

LORI ANDRUS

President

JEFFREY R. WHITE

Sr. Assoc. Gen. Counsel

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th St. NW, #200

Washington, DC 20001

(202) 617-5620

jeffrey.white@justice.org

February 4, 2025

ROBERT S. PECK

Counsel of Record

CENTER FOR

CONSTITUTIONAL

LITIGATION, PC

1901 Connecticut Ave. NW,

Suite 1101

Washington, DC 20009

(202) 944-2874

robert.peck@cclfirm.com

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................... i

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................2

ARGUMENT ..............................................................6

THE FIFTH AMENDMENT’S PERSONAL

JURISDICTION DUE PROCESS CONCERNS

ARE DISTINCT FROM THOSE OF THE

FOURTEENTH AMENDMENT. ......................... 6

A. The Fifth Amendment’s Due Process Clause

Has a Different History and Had Different

Requirements Than the Same Clause in the

Fourteenth Amendment. ................................. 9

B. The Fourteenth Amendment Focused on Very

Different Concerns Than the Fifth

Amendment Did............................................. 15

C. The Fifth and Fourteenth Amendments

Highlight Different Concerns........................ 19

D. The Different Treatment of Personal

Jurisdiction in Criminal Cases as a Matter of

Fifth Amendment Due Process Should Be

Extended to Civil Cases. ............................... 22

II. THE PSJVTA’S CONSENT PROVISION

PROVIDES A SECOND VALID RATIONALE

TO PERMIT THE EXERCISE OF PERSONAL

JURISDICTION IN THIS CASE. ...................... 26

A. Similar Statutes Have Met Constitutional

Muster for More Than a Century. ................ 27

B. Consent Through Affirmative Actions That

Meet Statutory Criteria Is Express and Not

Constructive. .................................................. 29

C. Consent Does Not Require Quid Pro Quo. ... 29

CONCLUSION .........................................................32

iii

TABLE OF AUTHORITIES

Cases

Abelesz v. Magyar Nemzeti Bank,

692 F.3d 661 (7th Cir. 2012) .................................. 20

Abitron Austria GmbH v. Hetronic Int’l, Inc.,

600 U.S. 412 (2023) ................................................ 15

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

591 U.S. 430 (2020) ................................................ 20

Asahi Metal Indus. Co. v.

Superior Ct. of California, Solano Cnty.,

480 U.S. 102 (1987) .................................................. 6

Baltimore & Ohio R.R. Co. v. Harris,

79 U.S. 65 (1870) .................................................... 28

Bank of Augusta v. Earle,

38 U.S. (13 Pet.) 519 (1839) ................................... 28

Beard v. Beard,

21 Ind. 321 (1863)................................................... 18

Blackmer v. United States,

284 U.S. 421 (1932) ................................................ 14

BNSF Ry. Co. v. Tyrrell,

581 U.S. 402 (2017) ................................................ 15

Bristol-Myers Squibb Co. v.

Superior Ct. of California, San Francisco Cnty.,

582 U.S. 255 (2017) ............................................ 6, 19

Container Corp. of Am. v. Franchise Tax Bd.,

463 U.S. 159 (1983) ............................................ 9, 21

Coyle v. Smith,

221 U.S. 559 (1911) ................................................ 20

D’Arcy v. Ketchum,

52 U.S. (11 How.) 165 (1850) ........................... 12, 14

Douglass v. Nippon Yusen Kabushiki Kaisha,

46 F.4th 226 (5th Cir. 2022)............................. 17, 23

Dubin v. United States,

599 U.S. 110 (2023) .................................................. 7

Ex parte Graham,

10 F. Cas. 911 (C.C.E.D. Pa. 1818) ........................ 12

Ex parte Schollenberger,

96 U.S. 369 (1877) .................................................. 29

Ex parte Woods,

3 Ark. 532 (1841) .................................................... 18

Frontera Res. Azerbaijan Corp. v.

State Oil Co. of the Azerbaijan Republic,

582 F.3d 393 (2d Cir. 2009).................................... 20

Gamble v. United States,

587 U.S. 678 (2019) ............................................ 9, 21

Goss v. Lopez,

419 U.S. 565 (1975) .................................................. 7

GSS Grp. Ltd v. Nat’l Port Auth.,

680 F.3d 805 (D.C. Cir. 2012) ................................ 15

Hanover Fire Ins. Co. v. Carr,

272 U.S. 494 (1926) ................................................ 28

Hanson v. Denckla,

357 U.S. 235 (1958) .......................................... 14, 27

Holder v. Humanitarian L. Proj.,

561 U.S. 1 (2010) ................................................ 8, 21

Hollingsworth v. Barbour,

29 U.S. (4 Pet.) 466 (1830) ..................................... 14

Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee,

456 U.S. 694 (1982) .......................................... 27, 30

Int’l Shoe Co. v. Washington,

326 U.S. 310 (1945) .......................................... 18, 26

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

564 U.S. 873 (2011) ........................ 6, 8, 9, 14, 19, 22

Lafayette Ins. Co. v. French,

59 U.S. 404 (1855) .................................................. 28

Langnes v. Green,

282 U.S. 531 (1931) ................................................ 12

Licci v. Lebanese Canadian Bank, SAL,

732 F.3d 161 (2d Cir. 2013).............................. 31, 32

Mason v. Blaireau,

6 U.S. (2 Cranch) 240 (1804) .................................. 12

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................................ 16

McGee v. Int’l Life Ins. Co.,

355 U.S. 220 (1957) ................................................ 20

Morrison v. Underwood,

59 Mass. 52 (1849).................................................. 14

Morrissey v. Brewer,

408 U.S. 471 (1972) .................................................. 7

Mullane v. Cent. Hanover Bank & Trust Co.,

339 U.S. 306 (1950) ................................................ 18

Murray’s Lessee v. Hoboken Land & Imp. Co.,

59 U.S. (18 How.) 272 (1855) ................................. 10

Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co.,

484 U.S. 97 (1987) .................................................... 6

Oubre v. Entergy Operations, Inc.,

522 U.S. 422 (1998) ................................................ 31

Paul v. Virginia,

75 U.S. (13 Pet.) 168 (1868) ................................... 28

Pennoyer v. Neff,

95 U.S. 714 (1878) .................................................. 17

Pennsylvania Fire Ins. Co. v.

Gold Issue Mining & Milling Co.,

243 U.S. 93 (1917) .................................................. 29

Picquet v. Swan,

19 F. Cas. 609 (C.C.D. Mass. 1828) ....................... 11

Price v. Socialist People’s Libyan Arab Jamahiriya,

294 F.3d 82 (D.C. Cir. 2002) .................................. 20

vii

RJR Nabisco, Inc. v. Eur. Cmty.,

579 U.S. 325 (2016) ................................................ 15

Roell v. Withrow,

538 U.S. 580 (2003) ................................................ 30

Shaffer v. Heitner,

433 U.S. 186 (1977) ................................................ 17

Smolik v. Philadelphia & Reading Coal & Iron Co.,

222 F. 148 (S.D.N.Y. 1915)..................................... 29

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) ................................................ 12

The Mary,

13 U.S. (9 Cranch) 126 (1815) ................................ 15

The Nereide,

13 U.S. (9 Cranch) 388 (1815) ................................ 12

The Schooner Exch. v. McFaddon,

11 U.S. (7 Cranch) 116 (1812) ................................ 10

Toland v. Sprague,

37 U.S. 300 (1838) .................................................. 12

United States v. Ballestas,

795 F.3d 138 (D.C. Cir. 2015) ................................ 24

United States v. Cabezas-Montano,

949 F.3d 567, (11th Cir. 2020) ............................... 24

United States v. Iossifov,

45 F.4th 899 (6th Cir. 2022)................................... 24

viii

United States v. Lawrence,

727 F.3d 386 (5th Cir. 2013) .................................. 24

United States v. Martinez-Hidalgo,

993 F.2d 1052 (3d Cir. 1993).................................. 23

United States v. Medjuck,

156 F.3d 916 (9th Cir. 1998) .................................. 24

United States v. Mohammad-Omar,

323 F. App’x 259 (4th Cir.) (2009) ......................... 24

United States v. Murillo,

826 F.3d 152 (4th Cir. 2016) .................................. 25

United States v. Pink,

315 U.S. 203 (1942) ............................................ 9, 21

United States v. S.-E. Underwriters Ass’n,

322 U.S. 533 (1944) ................................................ 28

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990) .......................................... 20, 21

United States v. Yousef,

327 F.3d 56 (2d Cir. 2003)...................................... 23

Waldman v. Palestine Liberation Org.,

835 F.3d 317 (2d Cir. 2016).................................... 25

Wilkinson v. Leland,

27 U.S. (2 Pet.) 627 (1829) ..................................... 13

World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980) ...................................... 8, 19, 20

Zadvydas v. Davis,

533 U.S. 678 (2001) ................................................ 21

Statutes

U.S. Const. art. IV, § 1 ................................................ 3

Promoting Security and Justice for Victims of

Terrorism Act of 2019, Pub. L. No. 116-94,

§ 903, 133 Stat. 3082 .................................... 2, 25, 26

15 U.S.C. § 77v(a) ...................................................... 15

15 U.S.C. § 78aa(a) .................................................... 15

15 U.S.C. § 80a-43 ..................................................... 15

11 U.S.C. § 541(a) ...................................................... 15

18 U.S.C. § 32(a)(1).................................................... 23

29 U.S.C. § 621 et seq. ............................................... 31

29 U.S.C. § 626 .......................................................... 31

31 U.S.C. § 3732(a) .................................................... 15

Other Authorities

4 Charles Alan Wright & Arthur R. Miller, Fed. Prac.

& Proc. Civ. § 1068.1 (4th ed. 2024) ...................... 22

Aaron D. Simowitz, Legislating Transnational

Jurisdiction, 57 Va. J. Int’l L. 325 (2018) ............... 7

Arthur T. von Mehren & Donald T. Trautman,

Jurisdiction to Adjudicate: A Suggested Analysis,

79 Harv. L. Rev. 1121 (1966) ................................... 7

Black’s Law Dictionary (7th ed. 1999) ...................... 30

Gary B. Born, Reflections on Judicial Jurisdiction in

International Cases, 17 Ga. J. Int’l & Comp. L. 1

(1987) ........................................................................ 7

Jack D. Smith & Gregory J. Cooper, Disrupting

Terrorist Financing with Civil Litigation, 41 Case

W. Res. J. Int’l L. 65 (2009)................................ 8, 21

Joseph Blocher, Reverse Incorporation of State

Constitutional Law, 84 S. Cal. L. Rev. 323 (2011) .. 7

Lawrence B. Solum & Max Crema, Originalism and

Personal Jurisdiction: Several Questions and a Few

Answers, 73 Ala. L. Rev. 483 (2022) .................. 6, 10

Max Crema & Lawrence B. Solum, The Original

Meaning of “Due Process of Law” in the Fifth

Amendment, 108 Va. L. Rev. 447 (2022) ........... 6, 16

Robert Allen Rutland, The Birth of the Bill of Rights,

1776-1791 (1955) .................................................... 10

Robin J. Effron & Aaron D. Simowitz, The Long Arm

of Consent, 80 N.Y.U. Ann. Surv. Am. L. 179 (2024)

................................................................................. 10

Ryan C. Williams, The One and Only Substantive

Due Process Clause, 120 Yale L.J. 408 (2010) ....... 16

Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L.

Rev. 12493 (2017) ................................................... 11

Stephen E. Sachs, The Unlimited Jurisdiction of

the Federal Courts, 106 Va. L. Rev. 1703

(2020) ........................................................ 6, 9, 10, 13

Steven G. Calabresi & Lena M. Barsky,

An Originalist Defense of Plyler v. Doe, 2017 B.Y.U.

L. Rev. 225 (2017)................................................... 16

Thomas H. Lee, The Law of Nations and the Judicial

Branch, 106 Geo. L.J. 1707 (2018) ........................ 13

Wendy Perdue, Aliens, the Internet, and “Purposeful

Availment”: A Reassessment of Fifth Amendment

Limits on Personal Jurisdiction, 98 Nw. U. L. Rev.

455 (2004) ................................................................. 7

INTEREST OF AMICUS CURIAE 1

The American Association for Justice (“AAJ”) is a

national, voluntary bar association established in

1946 to strengthen the civil justice system, preserve

the right to trial by jury, and protect access to the

courts for those who have been wrongfully injured.

With members in the United States, Canada, and

abroad, AAJ is the world’s largest plaintiff trial bar.

AAJ members primarily represent plaintiffs in personal injury actions, employment rights cases, consumer cases, and other civil actions. Throughout its

78-year history, AAJ has served as a leading advocate

for the right of all Americans to seek legal recourse for

wrongful conduct.

This case is of acute interest to AAJ members, who

represent plaintiffs in private causes of action under

the Anti-Terrorism Act (ATA) against defendants who

dispute personal jurisdiction. More broadly, the statute at issue in this case is the Promoting Security and

Justice for Victims of Terrorism Act (PSJVTA), which

Congress enacted in 2019 to expand personal jurisdiction over foreign ATA defendants based on meeting

certain statutory conditions “deemed” consent. The

statute shares key features with consent-by-registration statutes in place in many states, which provide

injured plaintiffs with access to their own courts to obtain legal redress against companies incorporated

elsewhere, a form of consent that this Court recently

1 Pursuant to Rule 37.6, amicus affirms that no counsel for any

party authored this brief in whole or in part and no person or

entity, other than amicus, its members, or its counsel has made

a monetary contribution to its preparation or submission.

reaffirmed. The Second Circuit’s decision is inconsistent with precedent and, if allowed to stand, would

provide the United States with lesser authority to assert its interests and personal jurisdiction than that

enjoyed by the States, suggesting that the Fifth

Amendment’s due-process requirements are somehow

even more limiting in this area than those of the Fourteenth Amendment.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Second Circuit erred in concluding that the

Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA), Pub. L. No. 116-94, § 903,

133 Stat. 3082, violated due process in extending personal jurisdiction to the Palestine Liberation Organization (PLO) and the Palestine Authority (PA). Amicus curiae AAJ focuses on two issues, either one of

which suffices by itself to reverse the holding below.

First, the court erroneously treated Fifth Amendment

due process the same as Fourteenth Amendment due

process for purposes of personal jurisdiction and imported inapt limitations. Second, it improperly constricted Congress’s authority to establish consent jurisdiction.

The Second Circuit read the due-process clauses

of the Fifth and Fourteenth Amendments to impose

geographical limitations, respectively, on the federal

government and on the States. The type of reverse incorporation it undertook ignored key differences in the

nature of State and federal sovereignty that requires

a different result.

The two amendments have separate histories,

separate contexts, and substantially different purposes with respect to personal jurisdiction. Due process, as understood for the United States in 1791, underwent significant change by the time the concept

was applied to the States in 1868 through the Fourteen Amendment. Additionally, the very different status of the States in relation to each other, when compared to an independent sovereign nation in relation

to other independent nations, has critically important

implications for the exercise of extraterritorial personal jurisdiction that favor the use that the PSJVTA

authorizes.

Importing the Fourteenth Amendment’s limitations on States into the Fifth Amendment imposes

limits on the federal government that were never part

of the Fifth Amendment, particularly when personal

jurisdiction is the subject of inquiry. When a court

does what the Second Circuit did here, the different

histories behind the respective amendments are

elided with ill effect. To the extent that the Fifth

Amendment says anything about personal jurisdiction, it must be read in the context of the general law

and the law of nations. Neither legal reference point

imposed limits beyond notice or voluntary submission

to a sovereign’s tribunal as a prerequisite to ensure

fair process. Issues of enforcement were left to the

practicalities of comity and did not suggest impediments that would now have a constitutional basis.

On the other hand, States—obligated to recognize

full faith and credit in another State’s actions and

laws, U.S. Const. art. IV, § 1—lacked a uniform approach to the validity of sister State judgments that

the Fourteenth Amendment supplied through its dueprocess guarantee. In other words, States operated

within a system that allocates regulatory power

among coequals with overlapping authority, subject to

the superior authority of the Constitution and the supremacy it vested in the federal government. At the

same time, due process addresses personal jurisdiction in state courts largely as an instrument of federalism. It assures that one State does not exercise authority allocated under our constitutional system to

another State.

The same considerations do not inform the prerogatives of the federal government. Our nation is not just

a State in a different pool of co-equals subject to being

overridden in its self-governance by some higher sovereign. And the federal courts do not stand in the same

shoes with respect to other national sovereigns and

their courts as state courts do to other States’ courts.

Another critical difference is that the federal government exercises plenary authority over interstate

and foreign commerce, foreign affairs, and the making

of treaties. That authority to operate extraterritorially, authorizes federal legislation, including statutes

that convey personal jurisdiction to the federal courts,

and confirms that the United States enjoys a different

type of sovereignty than that which resides in the

States. The PSJVTA, however, does more than convey

personal jurisdiction. It also serves as an instrument

through which the United States seeks to discourage

and deter terrorism, protects Americans traveling

abroad, and exercises its distinct sovereign interests,

all of which exist well outside the sovereign authority

of any State.

The fact that the operative language in both

amendments (“due process of law”) remains the same

does not dictate the same reading any more than our

understandings of the federal due-process clauses obligate state courts to read their identical state constitutional provisions in lockstep with this Court’s holdings. The concept of due process is both flexible and

contextual, operating differently on a sovereign-bysovereign basis.

Finally, and separately, the Second Circuit gave

short shrift to how consent jurisdiction may be manifested. It ignored that the PSJVTA was a congressional enactment well within its authority and

wrongly denied that consent could operate as the Act

establishes it. In addition, it imposed a novel quid pro

quo requirement as though consent required some

type of bargain or inducement that has no place in analyzing jurisdiction by consent. For example, if applied

to tag jurisdiction, authority to serve a person who

chose to be within the jurisdiction would evaporate.

Certainly, it is also not part of consent through voluntary appearance. What the Second Circuit did, however, was to conflate a type of “purposeful availment”

with consent. Yet, even if a benefit were a requirement

of consent, the record below amply satisfied that metric.

ARGUMENT

THE FIFTH AMENDMENT’S PERSONAL

JURISDICTION DUE PROCESS CONCERNS

ARE DISTINCT FROM THOSE OF THE

FOURTEENTH AMENDMENT.

The Second Circuit erred in treating the Fifth

Amendment’s Due Process Clause as identical to that

of the Fourteenth Amendment for personal-jurisdiction purposes, a question this Court has explicitly and

repeatedly left open. Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 582 U.S.

255, 268–69 (2017); see also Omni Cap. Int’l, Ltd. v.

Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987); Asahi

Metal Indus. Co. v. Superior Ct. of California, Solano

Cnty., 480 U.S. 102, 113 n.* (1987). At the same time,

this Court also has acknowledged that the “United

States is a distinct sovereign [so that] a defendant may

in principle be subject to the jurisdiction of the courts

of the United States but not of any particular State.”

J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 884

(2011) (plurality op.). 2

2 Scholars, too, have suggested that the Fifth Amendment poses

no obstacle to a transnational exercise of personal jurisdiction in

the federal courts. See, e.g., Max Crema & Lawrence B. Solum,

The Original Meaning of “Due Process of Law” in the Fifth

Amendment, 108 Va. L. Rev. 447, 453, 461–524 (2022) [hereinafter Crema & Solum, Original Meaning]; Lawrence B. Solum &

Max Crema, Originalism and Personal Jurisdiction: Several

Questions and a Few Answers, 73 Ala. L. Rev. 483, 524 (2022)

[hereinafter Solum & Crema, Several Questions]; Stephen E.

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

Footnote continued on next page.

It would also be error to assume that the use of the

same text, “due process of law,” implicates the same

limitations on the federal government as it does on the

States. The application of due process involves “intensely practical matters and . . . the very nature of

due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Goss v. Lopez, 419 U.S. 565, 578 (1975) (citation

omitted). Thirty-two state constitutions use the same

language as the federal Constitution to guarantee due

process, Joseph Blocher, Reverse Incorporation of

State Constitutional Law, 84 S. Cal. L. Rev. 323, 333

(2011), yet remain free to read the provision as providing greater rights than this Court’s interpretation of

Fourteenth Amendment process. Because due process

must be considered flexibly, Morrissey v. Brewer, 408

U.S. 471, 481 (1972), it “draws meaning from its context.” Dubin v. United States, 599 U.S. 110, 118 (2023)

(interpreting the word “use” but equally applicable to

“due process”); see, e.g., Goss, 419 U.S. at 579 (describing “due process” as “cryptic and abstract”). The identical nature of the text in the Fifth and Fourteenth

Amendments does not control the issue before this

L. Rev. 1703 (2020) [hereinafter Sachs, Unlimited Jurisdiction];

Aaron D. Simowitz, Legislating Transnational Jurisdiction, 57

Va. J. Int’l L. 325 (2018); Wendy Perdue, Aliens, the Internet, and

“Purposeful Availment”: A Reassessment of Fifth Amendment

Limits on Personal Jurisdiction, 98 Nw. U. L. Rev. 455, 456

(2004); Gary B. Born, Reflections on Judicial Jurisdiction in International Cases, 17 Ga. J. Int’l & Comp. L. 1, 39 (1987); Arthur

T. von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1136 (1966).

Court, as different sovereigns warrant different analyses. Nicastro, 564 U.S. at 884 (plurality op.).

Yet, as with other lower courts in civil cases (although, tellingly, not in criminal prosecutions), 3 the

Second Circuit assumed that the authority of the

United States with respect to other nations parallels

that of the States with respect to each other because

one State’s sovereignty “implie[s] a limitation on the

sovereignty of all of its sister States—a limitation express or implicit in both the original scheme of the

Constitution and the Fourteenth Amendment.” WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293

(1980). The same consideration, however, does not apply to the relationship of the United States to other

national sovereigns and certainly is not a “limitation

expressed or implicit in the original scheme of the

Constitution” or in the Fifth Amendment.

The Second Circuit also ignored the importance of

the PSJVTA as a tool intended to deter terrorism visited upon Americans, “an urgent objective of the highest order.” Holder v. Humanitarian L. Proj., 561 U.S.

1, 28 (2010), by penalizing those who support terrorism, even after the fact through “martyr payments.”

Punishing organizations supporting terrorism effectively deters future violence against Americans. See

Jack D. Smith & Gregory J. Cooper, Disrupting Terrorist Financing with Civil Litigation, 41 Case W. Res.

J. Int’l L. 65, 77–79 (2009). In addition, the United

States has an overriding and unique national interest

3 See infra pp. 24–27.

in protecting Americans abroad. See Gamble v. United

States, 587 U.S. 678, 687 (2019); see also United States

v. Pink, 315 U.S. 203, 233 (1942) (“Power over external

affairs is not shared by the States,” but “is vested in

the national government exclusively.”). The determination of how to deal with terrorism and with foreign

states falls within the realm of foreign policy, another

uniquely national interest that is “much more the

province of the Executive Branch and Congress than

of this Court.” Container Corp. of Am. v. Franchise Tax

Bd., 463 U.S. 159, 196 (1983). Yet, the Second Circuit

paid that consideration no heed.

That court also gave little weight to congressional

authority over the exercise of personal jurisdiction by

a federal court, despite past decisions and recent language from this Court suggesting otherwise. See, e.g.,

Nicastro, 564 U.S. at 885 (plurality op.) (indicating,

without deciding, that “Congress could authorize the

exercise of [personal] jurisdiction in appropriate

courts.”); cf. Sachs, Unlimited Jurisdiction, supra, at

1704 (“A federal court’s writ may run as far as Congress, within its enumerated powers, would have it

go.”).

A. The Fifth Amendment’s Due Process

Clause Has a Different History and Had

Different Requirements Than the Same

Clause in the Fourteenth Amendment.

Fifth Amendment due process reflects certain

“settled usages and modes of proceeding existing in

the common and statute law of England, before the

emigration of our ancestors, and which are shown not

to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.” Murray’s Lessee v. Hoboken

Land & Imp. Co., 59 U.S. (18 How.) 272, 277 (1855).

Due Process did not reflect personal-jurisdiction

concerns but focused on preventing government from

operating lawlessly or arbitrarily. See Robert Allen

Rutland, The Birth of the Bill of Rights, 1776-1791 10

(1955). To the extent that courts could exercise authority over individuals consistent with English practices

and the Framers’ understandings, the common law

and law of nations required parties to a lawsuit to provide notice of the legal action. See Solum & Crema,

Several Questions, supra, at 524. Alternatively, a defendant could consent to the court’s jurisdiction

through a voluntary appearance. Robin J. Effron &

Aaron D. Simowitz, The Long Arm of Consent, 80

N.Y.U. Ann. Surv. Am. L. 179, 200 (2024).

1. The Fifth Amendment’s personal-jurisdiction requirements reflect the law of nations.

Courts understood their authority over persons

and things to be a function of the law of nations, the

common law, and statutory law. Sachs, Unlimited Jurisdiction, supra, at 1718. Still, national sovereignty

played an important role. Chief Justice Marshall

acknowledged that, within the territory of the United

States, the only restraint on jurisdiction would be

those that are self-imposed because restrictions derived from external sources would effectively diminish

national sovereignty. The Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812). Even so, no

constitutional impediment restricted a federal court’s

jurisdictional reach over an individual outside national borders. Instead, a litigant, but not a court, had

to consider enforceability, a practical concern, which

suggested caution in seeking to exercise extraterritorial reach. See Stephen E. Sachs, Pennoyer Was Right,

95 Tex. L. Rev. 1249, 1253 (2017). Confident that extravagant assertions of jurisdiction resulted in judgments that were unenforceable, defendants would often default so that they could fight enforcement on

their home turf. Id. at 1252–53. Due process played no

role in the original court’s assessment of personal jurisdiction.

Useful insight into the settled usages in the nascent nation comes from Justice Story’s decision in Picquet v. Swan, 19 F. Cas. 609 (C.C.D. Mass. 1828). In

that case, the justice examined the authority granted

by the Judiciary Act of 1789 to assert personal jurisdiction over a non-inhabitant. He said that because

“congress never had any such intention” to extend process that far, “no suit would lie against any person,

who was not locally present, either as an inhabitant,

or in transitu in the United States.” Id. at 613. However, if Congress had chosen to expand service of process, there was no bar to a federal court’s authority to

have “a subject of England, or France, or Russia . . .

summoned from the other end of the globe to obey our

process, and submit to the judgment of our courts.” Id.

He added that, regardless of any objections based

on “principles of public law, public convenience, and

immutable justice” that might be mustered, a federal

court “would certainly be bound to follow [an act of

Congress extending personal jurisdiction], and proceed upon the law.” Id. at 614–15. Due process was not

a consideration. This Court subsequently adopted Picquet’s reasoning and held that “positive legislation”

could authorize process on non-inhabitants to provide

notice of the lawsuit sufficient to obligate the person

to appear. Toland v. Sprague, 37 U.S. 300, 330 (1838);

cf. Ex parte Graham, 10 F. Cas. 911, 912 (C.C.E.D. Pa.

1818) (Washington, J.) (“It is admitted, that these

courts, in the exercise of their common law and equity

jurisdiction, have no authority, generally, to issue process into another district, except in cases where such

authority has been specially bestowed, by some law of

the United States.”). Authorized process of the kind

that Congress could enact was dubbed “legislative jurisdiction.” D’Arcy v. Ketchum, 52 U.S. (11 How.) 165,

176 (1850).

The Constitution also contains an explicit grant

that justifies admiralty jurisdiction, U.S. Const., art.

III, § 2, which reflects the law of nations and that this

Court has recognized is part of the law of the land and

thus part of U.S. law. The Nereide, 13 U.S. (9 Cranch)

388, 423 (1815) (Marshall, C.J.); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 729 (2004). Under that jurisdiction, federal courts have long entertained lawsuits that would not otherwise meet a territorially

based limit on personal jurisdiction. Yet, admiralty

permits “complete jurisdiction over suits of a maritime

nature between foreigners.” Langnes v. Green, 282

U.S. 531, 544 (1931) (citations omitted). It even permits “cognizance of a case entirely between foreigners”

concerning a collision on the high seas. Mason v. Blaireau, 6 U.S. (2 Cranch) 240, 264 (1804) (Marshall, C.J.).

The expectation in international law that U.S. courts

will adjudicate those matters easily supports expecta-

tions that the looser personal-jurisdiction requirements of the law of nations supports the PSJVTA’s assertion of jurisdiction consistent with due process and

“settled usages.”

Subsequent to Picquet, Justice Story, writing for

the Court, contrasted the more limited authority

States had to authorize personal jurisdiction without

geographic limitation by noting that state “legislative

and judicial authority . . . [a]re bounded by the territory of that state.” Wilkinson v. Leland, 27 U.S. (2 Pet.)

627, 655 (1829).

The authority to exercise expansive legislation on

personal jurisdiction was not merely a quirk of American law. France asserted the prerogative to adjudicate “virtually any case in which the plaintiff or defendant is a French citizen;” Germany claimed jurisdiction over a Russian based on leaving insignificant

property (galoshes) in a Berlin Hotel; and Belgium engaged in reciprocal claims of personal jurisdiction if a

foreign court “would entertain a comparable action

against a Belgian defendant.” Sachs, Unlimited Jurisdiction, supra, at 1728 (footnote and citations omitted).

These stances in other nations, as well as in the

United States, reflected the law of nations, which

served as the “original federal common law.” Thomas

H. Lee, The Law of Nations and the Judicial Branch,

106 Geo. L.J. 1707, 1709 (2018). Even with respect to

State assertions of personal jurisdiction, courts applied “international law as it existed among the States

in 1790” and “a judgment rendered in one State, assuming to bind the person of a citizen of another, was

void within the foreign State, when the defendant had

not been served with process or voluntarily made defence.” D’Arcy, 52 U.S. at 176. Personal jurisdiction,

then, was “a question of state law.” Hanson v. Denckla,

357 U.S. 235, 250 (1958). This position allowed States

to define how process was served. Thus, for example,

this Court held that a federal court could disregard a

Kentucky judgment where notice was accomplished

through publication, but only because state law did

not authorize that method of service. Hollingsworth v.

Barbour, 29 U.S. (4 Pet.) 466 (1830).

Where, however, state law authorized service that

effectively crossed state lines, personal jurisdiction

provided no obstacle to judgment. For example, a Massachusetts statute permitted personal jurisdiction

over former state residents by leaving a summons at

the prior in-state residence of the defendant. Morrison

v. Underwood, 59 Mass. 52, 54 (1849). The Supreme

Judicial Court found no error in the exercise of personal jurisdiction on this basis even though the defendant “was not an inhabitant of the state, and was

out of the commonwealth, at the time of the service of

the writ.” Id.

2. Congress has broad authority to extend personal jurisdiction transnationally.

More recently, this Court has recognized that Congress could authorize personal jurisdiction where it

does not presently exist. Nicastro, 564 U.S. at 885

(plurality op.); cf. Blackmer v. United States, 284 U.S.

421, 438 (1932) (finding no Fifth Amendment problem

with a statute that extended in personam jurisdiction

over a U.S. citizen domiciled abroad). In fact, this

Court recently recognized that Congress may make a

law extraterritorial in scope and reach “claims alleging exclusively foreign conduct,” Abitron Austria

GmbH v. Hetronic Int’l, Inc., 600 U.S. 412, 418 (2023),

even when the “particular statute . . . merely confers

jurisdiction.” RJR Nabisco, Inc. v. Eur. Cmty., 579

U.S. 325, 326 (2016). That type of “legislative jurisdiction” exists under the Foreign Sovereign Immunities

Act, see GSS Grp. Ltd v. Nat’l Port Auth., 680 F.3d 805,

814 (D.C. Cir. 2012), as well as the Clayton Antitrust

Act and Federal Trade Commission Act. See BNSF Ry.

Co. v. Tyrrell, 581 U.S. 402, 409 (2017). Thus, for example, the Clayton Act authorizes worldwide service

of process “wherever [a defendant] may be found.” 15

U.S.C. § 22. Other statutes authorizing transnational

service include the securities acts, 15 U.S.C. §§ 77v(a),

78aa(a), 80a-43; the False Claims Act, 31 U.S.C. §

3732(a); and the Bankruptcy Act, 11 U.S.C. § 541(a).

The key animating and venerable principle behind

these statutes is that valid service of process establishes valid personal jurisdiction. See, e.g., The Mary,

13 U.S. (9 Cranch) 126, 144 (1815) (Marshall, C.J.).

Thus, where Congress authorizes it and service of

process can occur in a valid fashion, the Fifth Amendment does not impose additional requirements to

achieve personal jurisdiction. The PSJVTA operates

well within congressional authority and does not contravene the Fifth Amendment.

B. The Fourteenth Amendment Focused on

Very Different Concerns Than the Fifth

Amendment Did.

Personal jurisdiction was not a central concern of

the Fourteenth Amendment’s drafters. They had the

immediate objective of “the complete overturning and

uprooting of Dred Scott v. Sandford, ensuring that no

state could take away someone’s life, freedom, or possessions and guaranteeing, as a legal term of art, procedural due process for all persons.” Steven G. Calabresi & Lena M. Barsky, An Originalist Defense of

Plyler v. Doe, 2017 B.Y.U. L. Rev. 225, 246 (2017)

(footnote omitted). 4 Recent scholarship examining primary sources concluded that the meaning of due process “changed since the First Congress proposed [the

Fifth Amendment] for ratification” in 1789 and before

the 39th Congress proposed the Fourteenth Amendment in 1866,” ascribing the change to “linguistic

drift.” Crema & Solum, Original Meaning, supra, at

453, 461–524 (2022). See also Ryan C. Williams, The

One and Only Substantive Due Process Clause, 120

Yale L.J. 408, 408 (2010) (“Between 1791 and the

Fourteenth Amendment’s enactment in 1868, due process concepts evolved dramatically.”); Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226, 255–62

4 This Court has also acknowledged that an additional primary

objective of Section 1 of the Fourteenth Amendment—and by

most justices’ views, through its Due Process Clause—was to render the Bill of Rights, on a selective though nearly complete basis,

applicable to the States. See McDonald v. City of Chicago, 561

U.S. 742, 763, 762 n.9 (2010). If so, it is incongruent to assert that

“due process” means the same thing in the Fifth Amendment as

it does in the Fourteenth because only in the latter is it a basis

for incorporation. Moreover, it would seem redundant if Fourteenth Amendment due process incorporates the Fifth Amendment’s due-process guarantee when the same phrase is used. Certainly, the Fourteenth Amendment’s framers could easily have

accomplished the goal of incorporation with another phrase if

their use of “due process” meant the same thing as it did in the

Fifth Amendment.

(5th Cir. 2022) (en banc) (Elrod, J., dissenting), cert.

denied, 143 S. Ct. 1021 (2023).

Prior to the ratification of the Fourteenth Amendment, personal jurisdiction over persons or property

outside the geographic boundaries of an American

State raised no federal constitutional question. In that

pre-1868 world, States as sovereigns could exercise inordinate jurisdictional reach, if they chose to, while

facing limits to a judgment’s enforceability when the

damages or property could only be collected within another State.

This Court recognized the validity of that strategy

for defendants. Looking backward, this Court noted

that “[s]ince the adoption of the Fourteenth Amendment,” litigants dispute judgments and oppose enforcement “on the ground that proceedings in a court

of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law.” Pennoyer v.

Neff, 95 U.S. 714, 733 (1878), overruled in part by

Shaffer v. Heitner, 433 U.S. 186 (1977).

Only after Pennoyer did federal due process require that a nonresident defendant be served within

the forum state or voluntarily appear. Id. Pennoyer

mandated that, as a matter of due process, courts adhere to “those rules and principles which have been

established in our systems of jurisprudence for the

protection and enforcement of private rights.” Id. at

733. In that regard, this Court modernized personal

jurisdiction but only to the extent that it remained

consistent with “traditional notions of fair play and

substantial justice.” Int’l Shoe Co. v. Washington, 326

U.S. 310, 316 (1945) (citation omitted); see also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,

313 (1950) (permitting the assertion of jurisdiction by

state courts to determine nonresidents’ interests, consistent with due process, because the State’s interest

is “insistent and rooted in custom”).

State courts generally had not associated due process with personal jurisdiction. An Arkansas Supreme

Court decision was the first to suggest, in dicta, that

the state constitution’s “law of the land” provision

could impose restrictions on personal jurisdiction unless the court “gained such jurisdiction and exercised

its powers in conformity to law.” Ex parte Woods, 3

Ark. 532, 537 (1841). A later Indiana Supreme Court

decision held that the “due course of law” clause in the

Indiana Constitution allowed constructive notice of a

suit on residents temporarily absent from the State,

but could not authorize proceeding against a non-resident absent, possibly, some attachment of property.

Beard v. Beard, 21 Ind. 321, 323, 328 (1863).

The bottom line is that, prior to the Fourteenth

Amendment, due process did not restrict personal jurisdiction. Its limitations, therefore, should not be

added to the reach of the Fifth Amendment’s due-process requirements.

C. The Fifth and Fourteenth Amendments

Highlight Different Concerns.

1. Federalism, inapplicable to the extraterritorial reach of the nation, defines the limits on

States.

Under the Fourteenth Amendment, federalism

concerns animate this Court’s state-court personal-jurisdiction decisions. For example, in Bristol-Myers,

this Court explained again, that regardless of the

strength of the interest a State may have in applying

its law or the convenience of the forum, “the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its

power to render a valid judgment.” 582 U.S. at 263

(quoting World-Wide Volkswagen, 444 U.S. at 294). It

undertakes that function to impose order on the competing interests of co-equal States as a mandate of the

Constitution. World-Wide Volkswagen, 444 U.S. at

292. Thus, it places great emphasis on the “sovereignty of each State . . . [which] implie[s] a limitation

on the sovereignty of all its sister States.” Id. at 293.

For even greater emphasis, this Court has insisted

that limits on personal jurisdiction serve to maintain

“federal balance, the relationship between States as

sovereigns.” Nicastro, 564 U.S. at 884 (plurality op.).

Even the minimum-contacts test works to assure

that “States through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” World-Wide

Volkswagen, 444 U.S. at 292. Thus, federalism concerns largely define Fourteenth Amendment personaljurisdiction jurisprudence. Inconvenience, a once

prominent explanation for limited personal jurisdiction, on the other hand, has been “substantially relaxed” as a rationale and has taken a back seat to federalism because transactions often involve multiple

jurisdictions and issues of transportation and communication that are no longer deemed as burdensome as

they once were. Id. at 292–93 (citing McGee v. Int’l Life

Ins. Co., 355 U.S. 220, 222 (1957)).

Critically, States are not “separable economic entities” but participate in a constitutionally established

“common market” with an “economic interdependence

. . . [that] was foreseen and desired by the Framers.”

Id. at 293. Although States exist on a constitutionally

prescribed “equal footing,” see Coyle v. Smith, 221 U.S.

559, 567 (1911), the Constitution does not require a

balancing of U.S. sovereign interests with those of

other countries. After all, “foreign states are not ‘persons’ entitled to rights under the Due Process Clause.”

See, e.g., Abelesz v. Magyar Nemzeti Bank, 692 F.3d

661, 694 (7th Cir. 2012), aff’d sub nom. Fischer v. Magyar Allamvasutak Zrt., 777 F.3d 847 (7th Cir.), cert.

denied, 576 U.S. 1006 (2015); see also Frontera Res.

Azerbaijan Corp. v. State Oil Co. of the Azerbaijan Republic, 582 F.3d 393, 398–400 (2d Cir. 2009); Price v.

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

82, 95–100 (D.C. Cir. 2002).

Additionally, “it is long settled as a matter of

American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S.

Constitution.” Agency for Int’l Dev. v. All. for Open

Soc’y Int’l, Inc., 591 U.S. 430, 433 (2020). See also

United States v. Verdugo-Urquidez, 494 U.S. 259, 269

(1990) (“[W]e have rejected the claim that aliens are

entitled to Fifth Amendment rights outside the sovereign territory of the United States.”); id. at 260 (“[T]he

claim that extraterritorial aliens are entitled to rights

under the Fifth Amendment—which speaks in the relatively universal term of ‘person’—has been emphatically rejected.”); Zadvydas v. Davis, 533 U.S. 678, 693

(2001).

2. Extraterritorial reach implicates foreign affairs, a distinctly national concern.

The PSJVTA also serves as a tool intended to deter terrorism. The protection of Americans abroad

from terrorism is “an urgent objective of the highest

order.” Holder, 561 U.S. at 28. The Act accomplishes

that purpose by penalizing those who support terrorism. Here, it does so when “martyr payments” are

made, which provides a financial incentive for future

acts of terrorism. Punishing organizations supporting

terrorism effectively deters future violence against

Americans. See Smith & Cooper, supra, at 77–79. In

addition, the United States has an undeniable and

uniquely federal interest in protecting Americans

abroad. See Gamble, 587 U.S. at 687; see also Pink, 315

U.S. at 233 (“Power over external affairs is not shared

by the States,” but “is vested in the national government exclusively.”). Determining how to deal with terrorism and with foreign states falls within the realm

of foreign policy, another uniquely national interest

that is the province of the political branches, which

must be accorded broad discretion in pursuing those

interests. See Container Corp., 463 U.S. at 196. Yet,

the Second Circuit gave no deference to that policy

consideration, but should have.

Differences between state authority and that of

the United States explains why “personal jurisdiction

requires a forum-by-forum, or sovereign-by-sovereign,

analysis.” Nicastro, 564 U.S. at 884 (plurality op.). As

a function of constitutional design, “[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. See also 4 Charles Alan Wright & Arthur R. Miller,

Fed. Prac. & Proc. Civ. § 1068.1 (4th ed. 2024) (“When

a federal court adjudicates a federal question claim, it

exercises the sovereign power of the United States and

no federalism problem is presented.”).

The differences in sovereign authority—along

with the Constitution’s explicit grant of congressional

authority to establish lower federal courts, unconstrained by state borders, U.S. Const. art. III, § 1—

supports the idea that the Fifth Amendment does operate with the territorial imperatives that undergird

the Fourteenth Amendment. On that basis alone, reversal of the decision below is warranted.

D. The Different Treatment of Personal Jurisdiction in Criminal Cases as a Matter

of Fifth Amendment Due Process Should

Be Extended to Civil Cases.

Precedent shows that the same Fifth Amendment

due-process considerations that the Second Circuit

employed here to invalidate the PSJVTA poses no obstacle when a transnational defendant is pursued on

federal criminal charges. As Judge Elrod observed in

a Fifth Circuit case concerning extraterritorial personal jurisdiction, treating the Fifth Amendment the

same as the Fourteenth Amendment on personal jurisdiction “quite anomalously, afford[s] foreign civil

defendants greater due process protection than foreign criminal defendants.” Douglass, 46 F.4th at 249

(Elrod, J., dissenting); see also id. at 269–70 (Elrod, J.,

dissenting) (calling it “nonsense on stilts” that due

process allows the United States to “prosecute foreign

pirates, arms traffickers, murderers, and terrorists in

our federal courts for criminal conduct abroad” and to

punish them with life imprisonment or even death but

do not allow them to be subject to a civil lawsuit).

In fact, the Second, Third, Fourth, Fifth, Sixth,

Ninth, Eleventh, and D.C. circuits have found that the

Fifth Amendment has less rigid due-process application for criminal personal jurisdiction. For example, in

United States v. Yousef, 327 F.3d 56, 87 (2d Cir. 2003),

a foreign national prosecuted for conspiracy to bomb

United States commercial airliners in Southeast Asia

was held within “the special aircraft jurisdiction of the

United States,” as authorized by 18 U.S.C. § 32(a)(1).

It adopted the Ninth Circuit’s due-process standard to

hold that the “substantial intended effect of their attack on the United States and its citizens” was not “so

unrelated to American interests as to render their

prosecution in the United States arbitrary or fundamentally unfair.” Yousef, 327 F.3d at 111–12.

Other circuits have adopted similar or looser

standards. See United States v. Martinez-Hidalgo, 993

F.2d 1052, 1056 (3d Cir. 1993) (holding “nothing fundamentally unfair in [prosecution] exactly as Congress intended—extraterritorially without regard for

a nexus between a defendant’s conduct and the United

States”), cert. denied, 510 U.S. 1048 (1994); United

States v. Mohammad-Omar, 323 F. App’x 259, 262

(4th Cir.) (2009) (foreign national prosecution did not

violate due process because the defendant should have

“anticipate[d] being haled into court in the United

States on account of his drug trafficking activity in Afghanistan, Dubai, and Ghana”) (citation omitted), cert.

denied, 558 U.S. 908 (2009); United States v. Lawrence, 727 F.3d 386, 396 (5th Cir. 2013) (extraterritorial application of statute to non-U.S. defendants arrested while traveling between two foreign countries

in connection with drug-running exercise of jurisdiction was not “arbitrary or fundamentally unfair.”),

cert. denied, 571 U.S. 1222 (2014); United States v. Iossifov, 45 F.4th 899, 914 (6th Cir. 2022) (“even assuming that the Fifth Amendment limits congressional authority to criminalize extraterritorial conduct, . . .

prosecution [of Bulgarian national who never stepped

foot in the United States] did not run afoul of those

limits because it was not arbitrary or fundamentally

unfair”); United States v. Medjuck, 156 F.3d 916, 918

(9th Cir. 1998) (“[E]xtraterritorial application of

United States penal statutes . . . satisfy the strictures

of due process [when] there exists ‘a sufficient nexus

between the conduct condemned and the United

States’ such that the application of the statute would

not be arbitrary or fundamentally unfair to the defendant.”), cert. denied, 527 U.S. 1006 (1999); United

States v. Cabezas-Montano, 949 F.3d 567, 586–87

(11th Cir. 2020) (rejecting argument that Fifth

Amendment “due process prohibits the prosecution of

foreign nationals for offenses bearing no ‘nexus’ to the

United States”), cert. denied, 141 S. Ct. 814 (2020);

United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir.

2015) (holding no due-process violation because

“[t]here is no arbitrariness or fundamental unfairness” in prosecuting a Columbian citizen for drug running through vessels on the high seas), cert. denied,

577 U.S. 1166 (2016).

In holding that criminal and civil due-process considerations for personal jurisdiction are different,

these circuits typically rely on two justifications. One

theorizes that authority over a criminal prosecution is

warranted when the defendant’s actions “‘affected significant American interests’—even if the defendant

did not mean to affect those interests,” United States

v. Murillo, 826 F.3d 152, 157 (4th Cir. 2016), cert. denied, 137 S. Ct. 812 (2017). Another distinction treats

intent to “harm U.S. citizens and interests and to

threaten the security of the United States” differently

from “terror attacks” abroad unless there is “evidence

the attacks specifically targeted United States citizens.” Waldman v. Palestine Liberation Org., 835 F.3d

317, 341 (2d Cir. 2016).

Neither rationale, however, explains why Fifth

Amendment due process requires a foreign defendant’s liberty interests to vary depending on whether

the case is criminal or civil. Nor do they account for

the possibility that the U.S. interest is at least as

acute in using the civil justice system to deter terrorism as the criminal justice system. Indeed, the

PSJVTA seems to have the focus that these courts require because it covers defendants only when their victims are U.S. nationals. See 18 U.S.C. §§ 2333(a),

2334(e)(1).

Because caselaw already recognizes the personal

jurisdictional reach for the same activity, if the

charges are criminal without offending Fifth Amendment due process, and the U.S. interests are just as

great and justifying here where Congress has made its

purpose clear. There should be no constitutional objection to personal jurisdiction in these consolidated

cases.

II. THE PSJVTA’S CONSENT PROVISION

PROVIDES A SECOND VALID RATIONALE

TO PERMIT THE EXERCISE OF PERSONAL

JURISDICTION IN THIS CASE.

The PSJVTA deems that Respondents have consented to personal jurisdiction for terrorism-related

claims by U.S. citizens because Respondents made

“martyr payments” to terrorists or their families. 18

U.S.C. § 2334(e)(1)(A), or by maintaining “premises, or

other facilities or establishments in the United States”

or by conducting any activities “while physically present in the United States,” exempting certain diplomatic activities. Id. at § 2334(e)(1)(B). Consent constitutes a waiver of due-process objections to personal jurisdiction so that the differences between the Fifth

and Fourteenth Amendment are not joined where consent is manifest. Thus, in Mallory v. Norfolk S. Ry.

Co., 600 U.S. 122 (2023) (plurality op.), this Court explained that International Shoe and its progeny addressed personal jurisdiction where no consent to suit

in the forum existed. Mallory, 600 U.S. at 138 (plurality op.). Where “express or implied consent” does exist,

“manifested in various ways by word or deed,” personal jurisdiction attaches without having to consider

due-process standards. Id.

In this case, neither the Second Circuit nor the litigants dispute that the Respondents were engaged in

activities that fit the PSJVTA consent triggers. Still,

the Second Circuit held that such consent was invalid

as a due-process violation because it was not the product of a contract, litigation-related activity, or some reciprocal benefit. Pet. App. 21a–24a.

That holding misreads this Court’s precedents and

adopts a far more constricted view of consent than this

Court has articulated. Consent jurisdiction has its basis in the common law. Ford Motor Co. v. Montana

Eighth Jud. Dist. Ct., 592 U.S. 351, 379 (2021) (Gorsuch, J., concurring). And “[a] variety of legal arrangements have been taken to represent express or implied

consent to the personal jurisdiction of the court.” Ins.

Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456

U.S. 694, 703 (1982). This Court has acknowledged the

three kinds of consent the Second Circuit mentioned.

See id. at 704 (mentioning contract and “voluntary use

of certain state procedures”); Denckla, 357 U.S. at 253

(describing a reciprocal benefit where a “defendant

purposefully avails itself of the privilege of conducting

activities within the forum State, thus invoking the

benefits and protections of its laws.”). However, the

list does not exhaust the ways in which consent may

be manifested or be constructed.

A. Similar Statutes Have Met Constitutional Muster for More Than a Century.

Early in this country’s history, this Court recognized that States could grant a foreign corporation authority to transact business within its borders as a

matter of “comity,” Bank of Augusta v. Earle, 38 U.S.

(13 Pet.) 519, 592 (1839), but it may also require the

corporation to adhere to “such terms and conditions as

those States may think proper to impose.” Paul v. Virginia, 75 U.S. (13 Pet.) 168, 181 (1868), overruled on

other grounds by United States v. S.-E. Underwriters

Ass’n, 322 U.S. 533 (1944); see also Hanover Fire Ins.

Co. v. Carr, 272 U.S. 494, 507–08 (1926).

Legislation requiring consent by registration was

widely adopted in the nineteenth century. See, e.g.,

Baltimore & Ohio R.R. Co. v. Harris, 79 U.S. 65, 74

(1870) (listing some of the early State adopters). This

Court upheld these statutes against constitutional attack almost immediately. See Lafayette Ins. Co. v.

French, 59 U.S. 404, 406 (1855). It also validated a federal statute to the same effect, covering the District of

Columbia. Harris, 79 U.S. at 81. Thus, Congress, too,

could impose conditions on doing business. Notably,

this Court stated, without such deemed consent residents would have

no legal redress short of the seat of the

company in another State. In many instances the cost of the remedy would

have largely exceeded the value of its

fruits. In suits local in their character,

both at law and in equity, there could be

no relief. The result would be, to a large

extent, immunity from all legal responsibility.

Id. at 83–84. The grant of jurisdiction was broad. Consent to the forum’s jurisdiction extended to actions

arising in other jurisdictions. Id. at 77–78.

The authority to transact business that might be

considered a reciprocal benefit in that case is no different than the activities the Second Circuit detailed

in this case. The Respondents, beyond their diplomatic

activities, engage in lobbying and other activities

within the United States that cannot be distinguished

from “transacting business.” See Pet. App. 142a-143a.

B. Consent Through Affirmative Actions

That Meet Statutory Criteria Is Express

and Not Constructive.

This type of consent, this Court said, “actually is

conferred” and not “presumed or a “mere fiction.”

Pennsylvania Fire Ins. Co. v. Gold Issue Mining &

Milling Co., 243 U.S. 93, 96 (1917) (Holmes, J.). Taking a similar view two years earlier was Judge

Learned Hand, who called that type of consent “express,” not implied. Smolik v. Philadelphia & Reading

Coal & Iron Co., 222 F. 148, 150 (S.D.N.Y. 1915).

Thus, while some might regard the PSJVTA as creating a form of constructive consent, precedent suggests

that, having had notice of the conduct that constitutes

consent and choosing to continue to engage it, Respondents have voluntarily and affirmatively consented to U.S. jurisdiction. Cf. Ex parte Schollenberger, 96 U.S. 369 (1877) (by stipulating to service of

process upon its designated in-state agent, defendants

“have in express terms . . . agreed that they may be

sued there.”).

C. Consent Does Not Require Quid Pro Quo.

A reciprocal benefit is not a prerequisite to consent jurisdiction. A voluntary appearance in a court,

which involves no inducement, constitutes consent to

submit to the court’s authority. Ins. Corp. of Ir., 456

U.S. at 703 (“[A]n individual may submit to the jurisdiction of the court by appearance.”). Even the “voluntary use of certain state procedures” can amount to

constructive consent. Id. at 704. Moreover, consent

may be constructed from waiver or forfeiture through

inadvertence, such as failing to enter a special appearance to challenge personal jurisdiction. See Mallory,

600 U.S. at 147 (Jackson, J., concurring). Yet, these

types of acceptance of a court’s jurisdiction over the

defendant do not require the quid pro quo that the Second Circuit seemed to lard onto due process’s requirements. That Justice Jackson mentioned as a separate

way in which to submit to jurisdiction “voluntarily invok[ing] certain benefits from a State that are conditioned on submitting to the State's jurisdiction,” id. at

148 (Jackson, J., concurring), demonstrates that the

Second Circuit’s “reciprocal benefits” requirement is

not a prerequisite to valid consent, but an entirely separate consideration.

Voluntary submission can occur through affirmative acts. This Court has previously endorsed a definition of “appearance” as submission to a court’s jurisdiction through “formal written or oral declaration, or

record entry, or it may be implied from some act done

with the intention of appearing and submitting to the

court’s jurisdiction.” Roell v. Withrow, 538 U.S. 580,

587 n.3 (2003) (quoting Black’s Law Dictionary 95 (7th

ed. 1999)). However, an appearance can also be accomplished through unintentional inactivity as well, such

as failing to comply with a discovery order. Ins. Corp.

of Ir., 456 U.S. at 707.

Recently, this Court recognized that “a variety of

‘actions of the defendant’ that may seem like technicalities nonetheless can ‘amount to a legal submission

to the jurisdiction of a court.’” Mallory, 600 U.S. at 146

(2023) (plurality op.) (quoting Ins. Corp. of Ir., 456 at

704–05). In fact, Congress generally enjoys wide latitude in prescribing the manner in which statutory

rights are deemed waived. For example, in Oubre v.

Entergy Operations, Inc., 522 U.S. 422 (1998), where a

plaintiff brought an action under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §

621 et seq., the employer asserted that plaintiff had

waived her rights under the statute. This Court held

that plaintiff’s release did not comply with the Older

Workers Benefit Protection Act of 1990, 29 U.S.C. §

626. Congress there had explicitly provided that a

waiver of an employee’s ADEA rights “may not be considered knowing and voluntary unless at a minimum”

the waiver “is written in a manner calculated to be understood by such individual” and “the individual is advised in writing to consult with an attorney prior to

executing the agreement.” 29 U.S.C. § 626(f)(1)(A), (E).

Because the plaintiff’s release failed to meet the statutory prerequisites for waiver, it was ineffective and

could not bar employee’s ADEA claims. Oubre, 522

U.S. at 427–28.

In Licci v. Lebanese Canadian Bank, SAL, 732

F.3d 161 (2d Cir. 2013), the Second Circuit upheld a

New York district court's jurisdiction over terrorismrelated claims against a Lebanese bank based on the

bank’s “repeated use of [a] correspondent account—

and hence New York’s banking system—as an instrument to achieve the wrong complained of.” Id. at 173.

The court viewed the bank’s repeated and intentional

use of the New York-based account as “part of the

principal wrong” at issue, id. at 170, as well as the basis for personal jurisdiction. Id. at 171.

The D.C. Circuit took a similar stand. In Atchley

v. AstraZeneca UK Ltd., 22 F.4th 204 (D.C. Cir. 2022),

the plaintiffs sued foreign pharmaceutical corporations alleging they aided and abetted international

terrorist attacks against U.S. nationals in Iraq by

providing free American-made medical goods and cash

bribes to organizations affiliated with terrorists. The

appeals court upheld jurisdiction over the drug companies based on their contacts in the United States—

the channeling of American-made medical goods to

terrorist-dominated organizations. Id. at 231.

In sum, due process demands only that Congress

has identified actions that signify consent with a sufficient grace period so that a defendant makes a knowing and voluntary choice to continue engaging in those

activities and thereby accept its consequences for personal jurisdiction. The PSJVTA complies with that requirement and is therefore constitutional.

CONCLUSION

For the foregoing reasons, this Court should reverse the decision of the Second Circuit in this case.