U.S. Supreme Court to Consider Constitutionality of Federal Personal Jurisdiction Over Extraterritorial Acts
The U.S. Supreme Court will consider whether U.S. courts have personal jurisdiction over foreign defendants under the Promoting Security and Justice for Victims of Terrorism Act ("PSJVTA").
On December 6, 2024, the Supreme Court granted certiorari in two consolidated cases—Fuld v. Palestine Liberation Organization and United States v. Palestine Liberation Organization, regarding the constitutionality of the jurisdictional "consent" provision in the PSJVTA. The cases were brought by injured U.S. citizens and relatives of victims of terror attacks in Israel, against the Palestine Liberation Organization ("PLO") and the Palestinian Authority ("PA").
The PSJVTA was a Congressional response to a Second Circuit decision holding that there was no personal jurisdiction over the defendants based on extraterritorial conduct under the Anti-Terrorism Act. The PSJVTA provided that the PLO and the PA are "deemed to have consented to personal jurisdiction" in any civil case in U.S. courts, arising from international terrorism, if, post-enactment, they make payments to terrorists (or their families) responsible for the deaths or injuries of U.S. nationals or maintain an office or conduct any activity in the United States.
The Second Circuit held the Act unconstitutional on its face, as violating the Fifth Amendment's requirement of due process, because its "jurisdiction-triggering activities" could not "reasonably be interpreted as evincing the defendants' 'intention to submit' to the United States courts." The court explained that "Congress cannot, by legislative fiat, simply 'deem' activities to be 'consent' when the activities themselves cannot plausibly be construed as such." The Second Circuit declined to rehear en banc, over four judges' dissent.
In seeking Supreme Court review, the federal government argued that the Second Circuit's holding "undermines Congress's judgment that the PSJVTA is an important measure to further U.S. interests and protect and compensate U.S. nationals." And both petitioners argued that the decision "disregards the original public meaning of the Fifth Amendment's Due Process Clause, instead applying to the federal government the territorial limitations on state jurisdiction under the Fourteenth Amendment."
The Supreme Court will hear the cases this term and likely decide them by July 2025. These cases could have important implications beyond the PSJVTA, such as for personal jurisdiction and consent of foreign defendants more generally. Moreover, whether and to what extent the Fourteenth Amendment's limitations on state-court jurisdiction apply under the Fifth Amendment to federal-court jurisdiction is a longstanding and significant open question at the Supreme Court.
