Personal Jurisdiction in Fuld v. PLO and U.S. v. PLO

On April 1, the Supreme Court heard oral argument in Fuld v. PLO and U.S. v. PLO. The case hinges on the question of whether the Promoting Justice for Victims of Terrorism Act (PSJVTA)—which deemed that the Palestine Liberation Organization (PLO) and its affiliate, the Palestinian Authority (PA), had consented to personal jurisdiction in U.S. courts if they engaged in certain conduct—violates the Fifth Amendment’s due process guarantee of fairness.

The PSJVTA arises out of a body of case law that finds its origins in the Anti-Terrorism Act of 1992 (ATA), which provides a private cause of action to U.S. nationals and their families who are harmed by reason of an act of international terrorism. Congress enacted the ATA to enable victims of terrorism to hold terrorists and their sponsors accountable in civil treble-damages actions in U.S. courts. After a group of U.S. citizens sued the PLO and the PA under the ATA in the U.S. District Court for the Southern District of New York (Sokolow v. PLO), the U.S. Court of Appeals for the Second Circuit ultimately concluded that the district court’s exercise of personal jurisdiction—that is, a court’s authority to hear a case for a specific party—violated the PLO’s and the PA’s due process rights.

Then, in December 2019, Congress passed the PSJVTA, adding the PLO and the PA to the definition of “defendant” and expanding the conduct for jurisdictional consent. The victims’ families and the U.S. government are defending the PSJVTA’s constitutionality, arguing that Congress has broader personal-jurisdiction powers than state legislatures. The respondents contend that the act violates jurisdictional due process, analogizing to limitations traditionally imposed on the states under the 14th Amendment.

After a two-hour discussion, the justices seemed poised to reverse the Second Circuit’s earlier decision finding that the district court’s exercise of personal jurisdiction violated the PLO’s and the PA’s due process rights. It is unclear if the Court will decide the question of whether the Fifth Amendment imposes the same jurisdictional constraints on federal courts as the 14th Amendment does on state courts. While fairness and reasonableness concerns colored the liberal justices’ questions, conservatives on the Court seemed to question the judiciary’s role in deciding the constitutionality of a statute that presents a “Youngstown category 1 situation, where the president and Congress have acted together,” as Justice Brett Kavanaugh put it. That the political departments have acted in concert to achieve foreign policy and national security objectives pursuant to their respective constitutional authority to regulate respondents’ conduct—a pervasive theme throughout the argument—might indicate that the Court will issue an opinion on narrow grounds that allows the case to move forward in the lower court.

Background to the PSJVTA

In 2004, a group of U.S. citizens injured during a series of terrorist attacks in Israel, along with family members of U.S. citizens killed in such attacks, sued the PLO and the PA under the ATA in the U.S. District Court for the Southern District of New York (Sokolow v. PLO). Eventually, in 2011, the district court found general jurisdiction to allow the case to proceed on the basis that the totality of activities in the United States by the PLO and the PA justifies the court’s exercise of general personal jurisdiction. The court reasoned that the PLO and the PA had sufficient minimum contacts in the United States to satisfy traditional due process analysis for general jurisdiction—a test that ensures the court’s exercise of jurisdiction comports with notions of fairness guaranteed by the Due Process Clause—by way of maintaining a functional office in Washington, D.C., with employees devoted primarily to promoting PLO and PA interests. This included expenditure of substantial funds to promote the PLO’s and the PA’s interests in the United States, and employment of a consulting firm on behalf of the PA’s political activities. After a jury trial in 2015, the jury awarded the plaintiff families $655.5 million in treble damages.

By that time, however, the Supreme Court—in 2014—had clarified limits on general jurisdiction over foreign defendants in Daimler AG v. Bauman. Daimler held that a foreign corporation is subject to general jurisdiction only where it is “essentially at home,” not wherever its activities can be said to be “continuous and systematic.” According to the Court, an entity is essentially at home in the state in which it is incorporated and in which it has its principal place of business—where its operations, activities, or affiliations with the forum are constant and pervasive. The Daimler Court’s reasoning was based on an analogy to general jurisdiction over individuals in the forum where they are domiciled.

Consequently, the Second Circuit in 2016 reversed the district court’s judgment and held that general jurisdiction over the PLO and the PA was lacking because, under Daimler, the PLO’s and the PA’s activities were not considered constant or pervasive enough for the organizations to be “essentially at home.” As an initial procedural matter, the Second Circuit ruled that the PLO (a foreign agent) and the PA (a non-sovereign government) are entities subject to Daimler’s at-home test even though they are not corporations. Relying on circuit precedent that Daimler itself was grounded on general jurisdiction over individuals, the Court concluded that there was no reason to create a different general jurisdiction test depending on whether the foreign defendant is an individual, a corporation, or some other entity. The panel further held that the district court could not exercise specific jurisdiction—an alternative basis for personal jurisdiction that applies when a defendant’s contacts are related to the litigation—over the PLO and the PA, because the liability-creating conduct (here, the terrorist attacks) occurred extraterritorially and did not specifically target U.S. citizens. Therefore, the Second Circuit concluded that the district court’s exercise of personal jurisdiction violated the PLO’s and the PA’s due process rights, and the Supreme Court denied review.

In response to the Second Circuit’s decision and others, Congress twice amended the ATA’s jurisdictional provision—once in the 2018 Anti-Terrorism Clarification Act (ATCA) and again in the PSJVTA—purporting to establish personal jurisdiction over the PLO and the PA on the basis of consent, which may constitute an independent basis for subjecting a defendant to suit in a forum in which general and specific jurisdiction cannot be established.

The ATCA provided that defendants in ATA cases are deemed to have consented to personal jurisdiction if they accepted any of the three specified forms of U.S. financial assistance under the Foreign Assistance Act, benefited from a waiver of Section 1003 of the ATA (which provides that it is unlawful for the PLO or its agents to receive or disburse funds in the U.S., among other things), or maintained a U.S. office. In other words, the ATCA functioned as notice to ATA defendants that they would be deemed to have given their consent to U.S. federal courts’ jurisdiction over them if they engaged in the conduct outlined in the statute. Subsequently, the Sokolow plaintiffs moved the Second Circuit to recall its dismissal of the case. Finding neither of the ATCA’s factual predicates satisfied, the Second Circuit denied the motion, prompting the plaintiffs to file another petition for a writ of certiorari.

The PSJVTA and Subsequent Litigation

In 2019, while the Sokolow plaintiffs’ petition was pending, Congress enacted the statute at issue, the PSJVTA. Under the law, the PLO and the PA “shall be deemed to have consented to personal jurisdiction” in federal court for ATA claims if they pay an individual terrorist or families of terrorists responsible for killing or injuring Americans, or if they maintain offices or conduct activities in the United States, excepting official United Nations (UN) business.

In 2020, the Supreme Court granted the Sokolow plaintiffs’ petition, vacated the Second Circuit’s judgment, and remanded back to the Second Circuit in light of the new statute. The Second Circuit then remanded the case to the district court. Shortly after the Supreme Court’s decision, the family of an American citizen killed in a terrorist attack in the West Bank in 2018 filed an ATA suit (Fuld) against respondents in the Southern District of New York, relying on the PSJVTA as the basis for personal jurisdiction.

In the district court, the plaintiffs in Sokolow and Fuld alleged that personal jurisdiction had been established because the PLO and the PA engaged in the statutorily defined conduct. The PLO and the PA maintained that the PSJVTA violated the Fifth Amendment’s Due Process protections. The U.S. government intervened in both cases to defend the law’s constitutionality.

The district courts found that the PLO and the PA engaged in the conduct specified by the act. Particularly, both courts found the act’s payment prong satisfied, and in Sokolow, the court assumed without deciding that the activities prong was satisfied, without offering an explanation for its reasoning. But both courts held that neither category of conduct could be treated as reflecting the groups’ consent to personal jurisdiction in federal court. Ultimately, the district courts in both cases held that the jurisdictional provisions of the act were unconstitutional and dismissed them for lack of personal jurisdiction.

On appeal in Fuld, the Second Circuit affirmed the district court, holding that the PSJVTA’s jurisdictional provisions violate the Due Process Clause of the Fifth Amendment. The court’s decision also reaffirmed circuit precedent holding that the personal jurisdiction “due process analyses under the Fifth and 14th Amendments parallel one another in civil cases.” Specifically, the court concluded that “[n]o aspect of these allegedly jurisdiction-triggering activities can reasonably be interpreted as evincing the defendants’ ‘intention to submit’ to the United States courts.” The panel also determined that personal jurisdiction based on implied consent must derive from “litigation-related activities or reciprocal bargains.” For example, a defendant’s consent to personal jurisdiction may be implied based on a defendant’s voluntary appearance in court (unless they appear for the purpose of contesting personal jurisdiction) or the defendant’s failure to enter a timely objection to personal jurisdiction. Consent can also be implied if the defendant accepts a government benefit from the forum—such as registering in a state to do business—in exchange for its amenability to suit in the forum's courts.

Based on the decision in Fuld, the court of appeals denied the Sokolow plaintiffs’ motion to recall the mandate for dismissal. Over the dissent of four judges, the Second Circuit denied rehearing the case en banc. The private plaintiffs and the federal government separately petitioned the Supreme Court for review, which was granted in December 2024 with oral argument set on April 1. On March 6, petitioners filed an unopposed motion for divided argument to present distinct perspectives and interests to the Court. 

The Briefs

Petitioners’ Briefs

Both petitioners argue that the Second Circuit erred in holding the PSJVTA unconstitutional. Each asserts that the Due Process Clause of the Fifth Amendment does not bar Congress from subjecting foreign entities engaged in certain activities to suit in federal court for ATA claims. The private plaintiffs brought their cases chiefly to obtain redress for the losses incurred by the terrorist attacks committed against them or their family members. The U.S. government intervened to defend the PSJVTA as a valid exercise of Congress’s constitutional authority to regulate the federal courts’ jurisdiction, further foreign-policy and national-security interests, and afford Americans harmed by terrorist acts a means to obtain a remedy.

The government defends the act’s constitutionality on two grounds: (a) the means by which the act establishes personal jurisdiction over respondents comports with the Due Process Clause of the Fifth Amendment, and (b) in the alternative, the act is constitutional because the jurisdictional due process doctrine that constrains the states under the 14th Amendment does not apply to federal courts under the Fifth Amendment.

With regard to the first proposition, the government argues that the act’s deemed consent provisions satisfy the Fifth Amendment’s due process standards because they do not offend traditional limitations imposed on state courts’ exercise of personal jurisdiction under the 14th Amendment. The Court has held that the Due Process Clause of the 14th Amendment limits state courts’ ability to exercise personal jurisdiction over out-of-state defendants. But the Court has yet to resolve whether the Due Process Clause of the Fifth Amendment imposes the same restrictions on federal courts. Consequently, the government maintains that the Court need not reach the question here because the jurisdictional provisions in the PSJVTA satisfy the due process standards that constrain the state courts.

In support of its argument, the government advances a constructive consent theory. It underscores that the act applies only to respondents and “unambiguously informs” them of the conduct that constitutes consent to limited personal jurisdiction in federal courts for ATA claims—just as a state must provide notice that it will treat specified conduct as consent to personal jurisdiction. Emphasizing the flexibility of the Court’s due process jurisprudence, the government argues that a variety of actions can amount to constructive consent. Here, the act gave respondents notice of the jurisdiction-triggering conduct, and therefore their voluntary actions—which they do not dispute their engagement in—constitute constructive consent. Accordingly, the government concludes that the act satisfies “traditional notions of fair play and substantial justice” contemplated by the 14th Amendment, assuming that it applies to the statute.

Turning to the second proposition, the government argues in the alternative that the act is subject only to the Fifth Amendment, which imposes “lesser constraints on federal courts’ ability to exercise personal jurisdiction than the 14th Amendment does vis-à-vis the States.” Specifically, the government contends that Congress enjoys wide latitude to regulate the exercise of federal judicial power. Where the states’ sovereignty is territorially confined, “federal sovereignty extends nationwide and encompasses unique, constitutionally enshrined powers over such areas as commerce and foreign affairs.” A government constitutionally authorized to regulate outside its borders necessarily demands a framework that regards the scope of federal authority as broader than that of any state. Consequently, when Congress subjects foreign entities to personal jurisdiction, concerns arise distinct from the interstate federalism issues reflected in the Court’s 14th Amendment personal-jurisdiction jurisprudence. According to the government, that material difference, and the act’s advancement of U.S. foreign-policy and national-security interests, require a more flexible approach.

The victims’ families echo the government’s arguments but additionally assert that the Fifth Amendment as originally understood did not impose territorial restrictions on congressional authority over federal personal jurisdiction. The private plaintiffs look to founding-era history to support the notion that “[j]udicial power commensurate with extraterritorial legislative power was a deliberate feature of the constitutional plan.” In other words, if the Constitution failed to provide the judiciary the power to adjudicate cases arising from extraterritorial conduct, then Congress would be hamstrung in the exercise of its own power to legislate that conduct. Without parity, the legislature’s power to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations,” for example, would be superfluous. They also point to precedent confirming that the Article III judicial power extends to cases involving extraterritorial conduct, primarily relying on the 19th century case Picquet v. Swan and its progeny. Penned by Justice Joseph Story, Picquet affirmed Congress’s constitutional authority to authorize federal courts to hear cases involving extraterritorial conduct.

Finally, the private plaintiffs underscore that while territorial restrictions on state courts’ exercise of personal jurisdiction emerged during the Lochner era—a 40-year period in which the Court aggressively invoked the 14th Amendment’s substantive due process protections to strike down state laws deemed to infringe economic liberties by regulating conduct in other states—the Court has never recognized analogous restrictions under the Fifth Amendment.

Respondents’ Briefs

Respondents’ primary contention is that courts have repeatedly held that the exercise of personal jurisdiction over them violates due process, because the attacks did not target Americans and there are no other constitutionally sufficient connections to the United States. Critically, respondents are not recognized as sovereign by the United States and are forbidden from operating within the United States. The PLO’s engagements as a UN non-member state invitee is the only activity conducted in the United States.

Respondents argue that this case does not involve the two traditional forms of personal jurisdiction—general or specific. Because respondents are not at home in the United States, they are not subject to general jurisdiction; and because they have not engaged in any conduct in the United States related to the action—the terrorist attack—they are not subject to specific jurisdiction. Having rejected a showing of personal jurisdiction through the two traditional forms, respondents then turn to petitioners’ argument of the third traditional basis for establishing personal jurisdiction—consent. 

Respondents argue that allowing Congress to impose consent to jurisdiction in these circumstances would push the concept of consent well beyond its breaking point and challenge the Due Process Clause. Respondents point to Bauxites as establishing two basic principles guiding consent for personal jurisdiction. First, respondents argue there are no “magic words” for consent to personal jurisdiction. Any number of legal arrangements may be considered an action that “amount[s] to a legal submission to the jurisdiction of the court.” These could take the form of a forum stipulation clause, an appearance, or simply voluntarily participating in a course of proceedings without objecting to jurisdiction. However, respondents maintain that they have not expressly or implicitly consented to personal jurisdiction through legal actions. Second, respondents argue Bauxites distinguished between conduct and “mere assertions of power” by the forum to impose jurisdiction without consent. According to respondents, the conduct must be material to jurisdiction to distinguish a “permissible inference of consent from an improper penalty.” For example, it would not be a due process violation to imply consent where the defendant failed to comply with court-ordered jurisdictional discovery—the question in Bauxites—but due process would be violated if the court implied consent over a defendant’s failure to obey a court order that was unrelated to the defense against personal jurisdiction, like paying into the court’s registry.

Moreover, respondents point to College Savings Bank, in which the Court rejected a “constructive-waiver” theory, holding that if Congress could create waivers for jurisdictional defenses, it would render the constitutional requirement of consent meaningless. Respondents also reference the benefits conferred in Hess v. Pawloski, in which the privilege of driving on highways was found to amount to consent to personal jurisdiction, and Mallory, in which foreign corporations registering in a state were found to have submitted to jurisdiction by accepting the benefits of registration in that state. Respondents suggest that when a forum does not offer any benefit for a defendant to either accept or reject in order for consent to jurisdiction to apply, the defendant’s choice to engage in conduct does not imply consent since the activity does not depend on the benefit.

Applying that logic, respondents argue they have not engaged in any conduct signaling consent to personal jurisdiction in the United States. The petitioners point to two forms of conduct—making welfare payments in Palestine and conducting UN-related activities in the United States—as demonstrative of the respondents’ consent to personal jurisdiction in the U.S. Both forms of conduct were rejected as evidence of consent by the Second Circuit. Moreover, respondents argue that the United States does not have the authority to police welfare payments and that UN-related activities are permitted by the PSJVTA. Accordingly, no valid basis exists for finding consent where the PSJVTA does not provide respondents with a benefit in the form of granting them territorial access or permission to engage in activities, nor does it waive or restrict preexisting statutory restrictions on respondents’ activities.

The Second Circuit found that payments made to those killed or imprisoned in the Israeli-Palestinian conflict by respondents do not confer specific jurisdiction because they “cannot reasonably be interpreted as signaling the defendant’s ‘intention to submit’ to the authority of the United States courts.” Furthermore, respondents “formally revoked” the payments program in February 2025 in favor of need-based payments, rather than the old “prisoners and martyrs’ payment mechanism.” And respondents argue that their U.S.-based activities are not a valid basis for inferring consent to personal jurisdiction because courts have previously held the same conduct insufficient for that purpose—and the PSJVTA does not confer a benefit to be accepted as deemed consent.

Respondents assert that deemed consent statutes such as the PSJVTA undermine fundamental due process protections and depart from precedent. By contending that consent is a separate basis for personal jurisdiction but relying on cases that do not address “deemed consent” statutes, petitioners blur the requirements for specific jurisdiction and consent. Respondents further assert that the government’s foreign affairs and national security power does not meet the bar required by the Due Process Clause.

With regard to the constitutional due process argument, respondents submit that the Fifth and 14th Amendments have the same due process standards, rejecting petitioners’ claim that 14th Amendment Due Process protects “interstate federalism” interests not present in the Fifth Amendment. Pointing to Mallory, respondents argue that federalism plays no role in the constitutionality of the deemed consent statute. Additionally, every circuit that has reached the issue has found that the same standards apply in either the Fifth or 14th Amendment context for jurisdictional limitations questions.

Contrary to the private plaintiffs’ assertion, respondents also argue that the original meaning of Due Process does impose limitations on jurisdiction, pointing to early cases and scholarship in the United States that applied widely understood constraints on jurisdiction, such as trial by jury or service of process. Respondents also interpret Picquet more narrowly as indicating that foreign defendants are bound only to the extent of their property in the United States. The grant of extraterritorial authority to Congress does not change questions about personal jurisdiction.

In terms of separation of powers, respondents argue the passage of the PSJVTA wrongfully removed the courts’ ability to decide the question of consent. Congress cannot supersede the judicial function of constitutional interpretation and application. Finally, respondents suggest that petitioners mischaracterized the factual record relating to the PLO’s U.S. activities, such as the use of notaries by American citizens for documents for use in Palestine and various communication-related activities. Respondents contend these activities do not trigger the activities prong under the PSJVTA, are related to official UN business or diplomatic activities, or are “activities conducted ancillary to such official business.” Respondents request remand to resolve the factual issues.

U.S. Houses of Representatives Amicus Brief

While several amici filed briefs in this case, the U.S. House of Representatives' brief in support of petitioners merits scrutiny since a federal statute is at issue in the cases. The House argues it has a compelling interest in protecting American citizens from terrorism abroad; it contends that the Fifth Amendment’s Due Process Clause does not “constrain Congress’s ability to subject foreign defendants to the jurisdiction of federal courts.” If the Court affirms the Second Circuit, the decision would “effectively treat[] Congress as if it were a state legislature,” hindering Congress from exercising its constitutional authority to regulate federal judicial power. 

Furthermore, the House argues that congressional efforts to prevent international terrorism are impaired if the courts cannot exercise personal jurisdiction over those who conduct terrorist acts against Americans. The House points to the Article I grants of congressional authority to “regulate Commerce with foreign Nations” and to “define and punish … Offences against the Law of Nations,” as well as the Necessary and Proper Clause. Congress has relied on these authorities to pass extraterritorial laws, including the Death on the High Seas Act, the Helms-Burton Act (LIBERTAD), and other tangential acts such as the False Claims Act and the Sherman Antitrust Act.

The House maintains that the PSJVTA is well within the Due Process requirements of the Fifth Amendment and the constitutionally required separation of powers. The Fifth Amendment does not limit congressional authority to authorize courts to adjudicate cases involving extraterritorial conduct, and the House underscores early congressional practice and judicial precedent to that effect. Finally, the House argues that separation of powers is not at issue because the question is whether “Congress has (properly) made new law or (improperly) tried to tell the courts how to apply existing law to a given set of facts.” Here, Congress made new law in enacting the PSJVTA, so courts must determine for themselves whether respondents are deemed to have consented under the statute. 

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In sum, the Court will soon rule on whether Congress has the constitutional authority to pass a law that defines a foreign entity’s conduct as consent to personal jurisdiction in the United States. Based on the direction of questioning by conservative justices at oral argument that the judiciary need not pry into an area of foreign affairs policy in which the president and Congress have reached agreement, it is plausible that the Court will reverse the Second Circuit and leave the statute intact to allow the victims’ lawsuits to proceed. Whether the Court will articulate a limiting principle grounded in reasonableness and fairness to avoid an opening of the floodgates—that is, an unrestrained Congress statutorily defining whatever conduct it wants to constitute consent to personal jurisdiction—remains unclear.