Waldman v. Palestine Liberation Org., 925 F.3d 570

Eleven American families sued the PLO and PA under the Anti-Terrorism Act (18 U.S.C. § 2333) for terrorist attacks in Israel; jury awarded damages that were trebled to $655.5 million.
This Court reversed on appeal for lack of personal jurisdiction, vacated the district-court judgment, and issued mandate on Nov. 28, 2016; the Supreme Court denied certiorari.
Congress later enacted the Anti-Terrorism Clarification Act (ATCA) on Oct. 3, 2018, adding 18 U.S.C. § 2334(e)(1), which deems defendants to have consented to U.S. personal jurisdiction if they accept certain U.S. assistance after a 120‑day date or if they benefit from a waiver/suspension of 22 U.S.C. § 5202 and maintain U.S. offices.
Plaintiffs moved to recall the appellate mandate, arguing § 2334(e)(1) supplies jurisdiction over the PLO/PA.
Defendants argued the remedy is extraordinary and that § 2334(e)(1) does not apply to closed cases; plaintiffs failed to show the statute’s factual predicates were met.
The Court denied the motion to recall the mandate, finding plaintiffs did not establish either factual predicate and emphasizing finality and the general presumption against retroactive application to closed cases.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether to recall the appellate mandate	ATCA § 2334(e)(1) creates personal jurisdiction over PLO/PA and thus justifies reopening	Recall is extraordinary; ATCA does not apply to closed cases and factual predicates are unmet	Denied — extraordinary remedy not warranted; mandate not recalled
Whether plaintiffs met § 2334(e)(1)’s assistance predicate	PLO/PA have accepted qualifying U.S. assistance (or did so)	Plaintiffs present no evidence of current acceptance; DOJ represented they do not	Not met — plaintiffs failed to show current acceptance of qualifying assistance
Whether plaintiffs met § 2334(e)(1)’s waiver/office predicate	President’s conduct amounted to an implied suspension/waiver of §1003 and PLO/PA maintain U.S. offices	Waiver must be express under §1003; PLO Observer Mission is not U.S. jurisdictional office	Not met — no express waiver shown and Observer Mission not within U.S. jurisdiction
Whether ATCA applies to reopen final, closed judgments	ATCA applies regardless of when terrorist acts occurred and thus can reach closed cases	Retroactive application to reopen final judgments is disfavored; no congressional statement authorizing reopening	Court relied on finality presumption and precedent rejecting reopening final judgments; did not reopen case

Taylor v. United States, 822 F.3d 84 (2d Cir. 2016) (recalling a mandate is an inherent, extraordinary power reviewed for abuse of discretion)
Calderon v. Thompson, 523 U.S. 538 (1998) (recalling mandate is an extraordinary remedy to be used sparingly)
Sargent v. Columbia Forest Prod., Inc., 75 F.3d 86 (2d Cir. 1996) (importance of finality in resisting recall of mandate)
Klieman v. Palestinian Auth., 923 F.3d 1115 (D.C. Cir. 2019) (interpreting ATCA § 2334(e)(1) predicates; DOJ representation that PLO/PA do not accept U.S. assistance; requiring express §1003 waiver)
Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione Motonave Achille Lauro, 937 F.2d 44 (2d Cir. 1991) (PLO UN Observer Mission not within U.S. jurisdiction for ATA purposes)
United States v. Palestine Liberation Org., 695 F. Supp. 1456 (S.D.N.Y. 1988) (ATA inapplicable to PLO Observer Mission)
Vartelas v. Holder, 566 U.S. 257 (2012) (legislation presumptively prospective absent clear congressional intent)
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (retroactivity framework for statutes)
Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016) (Congress generally may not require reopening of final judgments)
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (Congress cannot retroactively command reopening of final judgments)