Fuld v. Palestine Liberation Organization

LII note: The U.S Supreme Court has now decided Fuld v. Palestine Liberation Organization

Issues

Does the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA) allow federal courts to exercise personal jurisdiction over the Palestine Liberation Organization and the Palestinian Authority consistent with the Fifth Amendment?

Oral argument:
April 01, 2025
Court below:
United States Court of Appeals for the Second Circuit

The Supreme Court will consider whether the personal jurisdiction subsection of the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA) violates the Due Process Clause of the Fifth Amendment. Fuld argues that early laws like the Judiciary Act of 1789 show that Congress can give courts the ability to adjudicate extraterritorial conduct. The Palestine Liberation Organization (“PLO”) and the Palestinian Authority (“PA”) argue the Fifth Amendment only allows courts to exercise jurisdiction over foreigners with a presence in the U.S. and that early statutes required physical control over people or property within the U.S. as a prerequisite to jurisdiction. Fuld asserts that the PSJVTA’s clear notice makes the PLO’s conduct a manifestation of consent to jurisdiction. The PLO contends that consent requires a voluntary act, and that the PSJVTA lacks U.S. nexus and fair notice, violating due process. The outcome of this case will likely determine whether Fuld can recover, as well as frame the future of personal jurisdiction for terrorism in foreign countries.

Questions as Framed for the Court by the Parties

Whether the Promoting Security and Justice for Victims of Terrorism Act violates the due process clause of the Fifth Amendment.

Facts

The Anti-Terrorism Act of 1992 (“ATA”) allows Americans to sue a person who aids and abets or conspires to commit an act of international terrorism. In 1993, the Oslo Accords established that the Palestinian Authority was the interim governance authority for Palestinians living in Gaza and the West Bank. The United Nations (“UN”) had previously recognized the Palestine Liberation Organization as the UN representative for the Palestinian people. In 2004, the family of Sokolow and other families (collectively “Sokolow”) filed a case in the United States District Court for the Southern District of New York (“S.D.N.Y.”) against the PA and the PLO (collectively “PLO”) for deaths and injuries resulting from multiple terrorist attacks in Israel. Sokolow alleged that the PLO made payments to the families of individuals killed while engaging in terrorist acts. In 2015, the District Court found in favor of Sokolow, ordering the PLO to pay treble damages . The PLO appealed the District Court decision. In 2016, the United States Court of Appeals for the Second Circuit vacated the judgement and remanded the case to the District Court with instructions to dismiss the case for lack of personal jurisdiction over the PLO.

In 2018, Congress passed the Anti-Terrorism Clarification Act (“ATCA”), which states that defendants in ATA cases consent to jurisdiction when they accept assistance from the U.S. or maintain an office in the U.S. In light of the passage of the ATCA, Sokolow moved to recall the mandate on their case. The District Court denied the motion. In 2019, Sokolow filed for a writ of certiorari . In December 2019, Congress passed the Promoting Security and Justice for Victims of Terrorism Act (“PSJVTA”). The PSJVTA specifically adds the PA and the PLO to the definition of “defendant” in the ACTA and expands the conduct that constitutes consent for jurisdictional purposes. On April 27, 2020, the Supreme Court of the United States granted certiorari and vacated the Sokolow judgement, remanding the case to the lower court.

In 2020, the Fuld plaintiffs sued the PLO in S.D.N.Y. for its role in the 2018 death of an American in a terrorist attack in the Israeli-occupied West Bank. The United States intervened to argue for the PSJVTA’s constitutionality in this case and the Sokolow case. In 2022, the District Court granted the PLO’s motion to dismiss for lack of personal jurisdiction. Fuld appealed the District Court’s decision to the Second Circuit Court of Appeals, which consolidated the Fuld and Sokolow cases for argument. The Court of Appeals determined that the PLO did meet the personal jurisdiction requirements in the PSJVTA, but agreed with the Respondents and the District Court that the PSJVTA conflicts with the Due Process Clause of the Fifth Amendment . The Court of Appeals therefore deemed the PSJVTA unconstitutional and affirmed the lower court’s ruling.

On July 3, 2024, Fuld and Sokolow (hereafter collectively “Fuld”) petitioned for a writ of certiorari, which the Supreme Court of the United States granted on December 6, 2024.

Analysis

FIFTH AMENDMENT LIMITS ON EXTRATERRITORIAL ADJUDICATIVE JURISDICTION

Fuld argues that the PSJVTA complies with the Fifth Amendment's Due Process Clause because historical practice and precedent impose no limits on Congress’s power to authorize federal courts to exercise personal jurisdiction over extraterritorial conduct. Fuld asserts that at the Founding–the period when the U.S. Constitution was drafted and ratified –the Fifth Amendment did not constrain Congress’s authority over extraterritorial jurisdiction. Fuld claims that early statutes like the Judiciary Act of 1789 and the Crimes Act of 1790 extended jurisdiction beyond U.S. borders to counter threats disrupting American trade, like piracy on the high seas. Fuld argues that the Constitution entrusts Congress with expansive powers to protect U.S. interests globally, unchecked by territorial due process constraints. Fuld contends that Supreme Court precedent consistently upholds such congressional power in extraterritorial cases, citing United States v. Curtiss-Wright Export Corp. , which determined that Congress has inherent authority over foreign affairs, and United States v. Bowman , which found that jurisdiction extended to Americans defrauding the U.S. abroad. Fuld distinguishes this from Fourteenth Amendment personal jurisdiction restrictions on states, which are rooted in federalism and absent from cases where Congress has sovereign authority over national security. Fuld notes that while the Fourteenth Amendment also contains a Due Process Clause, the Second Circuit erred by conflating the two amendments’ standards, effectively reading the Fourteenth Amendment’s interstate federalism concerns into the Fifth Amendment, which applies to the federal government. Fuld further argues that the Second Circuit incorrectly applied a stricter standard to civil cases than to criminal cases. Fuld contends that this error overlooks the PSJVTA’s alignment with Congress’s historical prerogative to protect Americans from foreign harm.

The PLO counters that the original meaning of the Fifth Amendment’s Due Process Clause establishes territorial boundaries for personal jurisdiction and that the PSJVTA breaches these limits by assuming consent to personal jurisdiction through specific conduct occurring extraterritorially. The PLO argues that Founding-era judges viewed due process as protecting natural rights, including limits on jurisdiction over foreigners without physical presence or property in the U.S., and they protected against attempts to transgress these limitations. The PLO contends that due process is a check on legislative overreach, requiring a defendant to have a tangible connection to the forum before jurisdiction can be exercised. The PLO challenges Fuld’s reliance on early statutes, noting that admiralty and piracy cases involved physical control over persons or property within U.S. territory and not legislative assertions of jurisdiction over foreign entities. It argues that prize cases , such as Talbot v. Jansen , required actual U.S. authority over prize or pirate ships, which is different from jurisdiction by consent based on payments by foreign actors abroad as covered in the PSJVTA. Addressing Fuld’s civil-criminal distinction, the PLO argues that the Second Circuit did not err since the Fifth and Fourteenth Amendments apply the same due process rules to personal jurisdiction. The PLO contends that the mere absence of interstate federalism concerns, which undergirds the Fourteenth Amendment’s personal jurisdiction inquiry, does not mean that the Fifth Amendment imposes a lower standard for personal jurisdiction. The PLO further asserts that the Define and Punish Clause , which gives Congress the power to define and set penalties for crimes against international law , cited by Fuld, historically applied to narrow offenses like piracy. The PLO contends that this argument undermines Fuld’s claim of unlimited congressional power.

CONSENT-BASED JURISDICTION AND DUE PROCESS

Fuld argues that even if the more restrictive Fourteenth Amendment personal jurisdiction standards apply, the PSJVTA satisfies due process by establishing valid consent to jurisdiction, as upheld in Mallory v. Norfolk Southern Railway Co . Fuld contends that the PSJVTA’s clear notice of jurisdiction-triggering conduct mirrors Mallory’s approval of consent via voluntary acts like business registration in a state. Fuld further contends that the PLO had fair warning after the PSJVTA’s enactment in 2018 because the statute specifically lists acts like funding terrorism-related payments as deemed consent to personal jurisdiction. Fuld asserts that PLO’s continued payments to families of alleged terrorists and alleged U.S. activities post-PSJVTA show voluntary consent to jurisdiction. According to Fuld, the PSJVTA provided the PLO with a clear choice: either stop the conduct outlined in the law or submit to U.S. jurisdiction, a decision they effectively made by continuing their actions. Fuld contends that the Second Circuit erred in invalidating the PSJVTA, as the court held that due process requires a “reciprocal bargain” between the government and the defendant for consent to jurisdiction to be valid—a bargain the court found lacking in this case. Fuld argues that no “reciprocal bargain” is needed because due process only requires notice and nexus, not mutual benefits.

The PLO argues that the PSJVTA’s deemed consent provisions violate due process under any standard. The PLO contends that consent requires a defendant’s actions to signal agreement, rather than mechanical branding of unrelated conduct as consent. The PLO distinguishes Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee , where consent stemmed from litigation conduct, specifically a foreign insurer’s refusal to comply with U.S. discovery orders. In contrast, the PLO argues that the PSJVTA takes a punitive approach by imposing jurisdiction based on extraterritorial acts unrelated to U.S. benefits or judicial proceedings. The PLO asserts that personal jurisdiction requires a defendant’s voluntary acceptance of a forum’s benefits in exchange for consent; and, the PSJVTA violates Due Process by imposing jurisdiction on conduct that involves no such U.S. provided benefit or agreement. The PLO distinguishes between an affirmative acceptance of jurisdiction, like accepting conditional federal funds, or an implied acceptance, like using the privilege of driving on public roads, with the absence of a change in previous conduct, which is the case here. They argue that without this fair, reciprocal bargain, of any benefit, any claim of implied consent is merely legislative overreach. The PLO contends that this punitive framing contrasts with Bauxites ’ focus on purposeful availment , and argues that the PSJVTA’s retrospective scope further undermines any claim of voluntary consent.

Discussion

IMPACT ON AMERICANS’ SAFETY & SECURITY

The America First Legal Foundation (“AFLF”), in support of Fuld, argues that setting aside the PSJVTA would negatively impact the safety and security of American citizens. The AFLF claims that invalidating the PSJVTA closes the opportunity for families of Americans killed in terrorist attacks abroad to seek justice for their loved ones by suing terrorist groups in federal court. Without this safeguard, the AFLF argues, terrorist attacks will increase, with perpetrators likely to harm Americans. Furthermore, former Secretary of State Mike Pompeo , in support of Fuld, claims that because the Promoting Security and Justice for Victims of Terrorism Act (“PSJVTA”) was enacted to disrupt a Palestinian Authority (“PA”) program that provides monthly payments to Palestinian prisoners and families of Palestinians who engage in violence (including terrorism), invalidating the PSJVTA would almost certainly increase the number of terrorist acts. Secretary Pompeo contends that the payment program substantially slowed after the United States passed the PSJVTA and that without it in place to disincentivize terrorism and the payment program, Palestinians will be motivated to commit terrorism against Americans to receive monthly payments. The AFLF also claims that since the October 7, 2023 Hamas-led attack on Israel, the PA has paid at least 661 members of Hamas, with this number likely to increase without the PSJVTA. Additionally, a group of seventeen Jewish, pro-Israel, and Civil Rights Organizations, in support of Fuld, agrees with Secretary Pompeo, stating that since the October 7 attacks, the PA has paid an additional $1.3 million every month to Hamas terrorists.

The Palestinian Liberation Organization (“PLO”) argues that invalidating the PSJVTA would not impact the safety and security of Americans overseas, as the PA and the PLO have never purposefully targeted Americans and never will. The PLO further argues that the payment program was meant to remedy domestic issues in Palestine, and that any Americans killed in these attacks were not targeted but instead harmed through indiscriminate violence, rather than anti-American animus specifically. Further, the PLO argues that the program’s purpose was not to pay Palestinians to commit terrorism, but rather to provide a social safety net for Palestinians living under Israeli military occupation. The PLO asserts that many recipients of the program are detained for political crimes and security offenses, which are broadly defined and can include posting content on social media that is critical of the Israeli occupation or waving the Palestinian flag without approval. ThePLO further argues that in February 2025, the PA expanded the program to create a need-based social welfare program to assist Palestinian families–a move that the United Nations supported. The PLO maintains that if the PSJVTA is not invalidated, the decision would harm the lives of all Palestinians who benefit from the program, including the 33,700 families that rely on the program for monthly payments. The PLO further argues that Fuld and their amici exaggerate the importance of the PSJVTA. The PLO contends that the PSJVTA is not a critical component of the American security scheme because the PSJVTA applies narrowly to the PA and the PLO only, and does not cover groups like Hamas, Hezbollah, or ISIS. The PLO concludes that eliminating the PSJVTA would do little harm to Americans’ security.

Conclusion


Johanna Hussain , Zachary Jacobson and Zaria Goicochea

Rodrigo Tojo Garcia

Acknowledgments

The authors would like to thank Professor Michael Dorf for his insights and comments in writing this article.

Additional Resources