SCOTUS wrap-up: terror victims can sue PLO in federal court

A federal law recognizing personal jurisdiction over the Palestine Liberation Organization and Palestine Authority in suits seeking civil damages for acts of international terrorism does not violate the Due Process Clause of the Fifth Amendment, a unanimous U.S. Supreme Court has ruled in reversing decision from the 2nd Circuit.

The case involves two separate lawsuits filed in the Southern District of New York under the Anti-Terrorism Act of 1990. The ATA creates a federal cause of action for civil damages for U. S. nationals injured or killed “by reason of an act of international terrorism.”

The Promoting Security and Justice for Victims of Terrorism Act expressly provides that the PLO and Palestinian Authority “shall be deemed to have consented to personal jurisdiction” in ATA cases based on either the organizations’ activities on U.S. soil or their payment of salaries to terrorists in Israeli prisons and to families of deceased terrorists, which Congress has deemed to be incentives to “commit acts of terror.”

Click here to read the full text of the June 20 decision in Fuld v. Palestinian Liberation Organization.

BULLET POINTS: “It is permissible for the Federal Government to craft a narrow jurisdictional provision that ensures, as part of a broader foreign policy agenda, that Americans injured or killed by acts of terror have an adequate forum in which to vindicate their right to ATA compensation.

“The statute’s jurisdiction triggering predicates are likewise narrow. The payments prong furthers the Federal Government’s longstanding policy of deterring these sorts of payments, which the United States has determined promote acts of terror that may injure or kill Americans. And the activities prong — which predicates jurisdiction on respondents’ conduct within the United States — represents a continuation of the Federal Government’s longstanding, nuanced policy delineating the operations in which respondents may permissibly engage on U. S. soil. Far from an anything-goes approach, then, the PSJVTA ties jurisdiction to specific and narrow conduct that directly implicates issues of sensitive and ongoing concern in respondents’ relationships with the United States.”

— Chief Justice John G. Roberts Jr., opinion of the court

“The Court properly holds that the personal-jurisdiction provisions of the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA) do not violate respondents’ claimed rights under the Due Process Clause of the Fifth Amendment. In reaching this conclusion, the majority recognizes that the Fourteenth Amendment’s ‘minimum contacts standard’ does not apply to the Fifth Amendment’s Due Process Clause. But, rather than decide what standard does apply, the Court holds only that the Fifth Amendment at least permits a statute such as the PSJVTA that ‘ties federal jurisdiction to conduct closely related to the United States that implicates important foreign policy concerns.’ The Court leaves for another day the task of defining ‘the Fifth Amendment’s outer limits on the territorial jurisdiction of federal courts.’

“I would take a different approach. When interpreting constitutional provisions, we must look to ‘the text of the Constitution’ as well as ‘historical evidence from the framing’ that can illuminate ‘the intent of those who drafted and ratified it.’ The critical question in these cases is what boundaries the Fifth Amendment’s due process guarantee, as originally understood, places on the Federal Government’s power to extend personal jurisdiction over respondents. Historical evidence demonstrates that the answer is ‘none.’ Because the majority has adopted an analysis that is largely unconnected to the Constitution’s text and history, I concur only in the judgment.”

— Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, concurring in judgment