82 F.4th 64
2d Cir.2023Background
- U.S. citizens injured or killed in terror attacks in Israel sued the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) under the Anti‑Terrorism Act (18 U.S.C. § 2333), and a district court entered a large jury verdict treble‑damaged under the ATA.
- On appeal the Second Circuit in Waldman I held the district court lacked both general and specific personal jurisdiction over the PLO and PA and vacated the judgment; the mandate issued in November 2016.
- Congress enacted two statutes to supply jurisdiction by consent: first the Anti‑Terrorism Clarification Act of 2018 (ATCA), then the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA), which defines post‑enactment payments or U.S. activities by PLO/PA as "deemed consent."
- The Supreme Court remanded Waldman II for reconsideration in light of the PSJVTA; the district court concluded defendants had made qualifying payments (triggering PSJVTA prong A) but held the PSJVTA’s deemed‑consent scheme violated due process.
- The Second Circuit (here and in the companion Fuld decision) concludes the PSJVTA’s deemed‑consent provision is inconsistent with the Fifth Amendment Due Process Clause; therefore the statute cannot establish jurisdiction and the motion to recall the 2016 mandate is denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PSJVTA’s "deemed consent" to personal jurisdiction comports with constitutional due process | PSJVTA validly creates consent‑based jurisdiction over PLO/PA | Deemed consent cannot override Fifth Amendment due‑process limits on jurisdiction | PSJVTA’s deemed‑consent provision violates the Fifth Amendment (per Fuld); unconstitutional |
| Whether defendants engaged in jurisdiction‑triggering conduct under PSJVTA (prongs A and B) | Plaintiffs say defendants made qualifying post‑enactment payments and engaged in U.S. activities, triggering the statute | Defendants dispute the factual predicates and contend exemptions (e.g., U.N.‑related activities) apply | District court found sufficient evidence of qualifying payments under prong A; Circuit did not apply statute because it is unconstitutional |
| Whether the Court should recall its November 2016 mandate and reinstate the judgment | Recall is appropriate because PSJVTA supplies a new, valid basis for jurisdiction and relief | Recall is an extraordinary remedy; finality concerns and constitutional objections counsel against recall | Motion to recall mandate is denied; original mandate remains in effect |
| Whether a new statute is an exceptional circumstance warranting recall of mandate | New jurisdictional statute justifies recalling mandate and reopening case | Recall is rare; finality and due process limit reopening absent a constitutionally valid basis | Recall power exists but is exercised sparingly; not justified here because PSJVTA is unconstitutional |
Key Cases Cited
- Waldman v. Palestine Liberation Org., 835 F.3d 317 (2d Cir. 2016) (vacating judgment for lack of personal jurisdiction)
- Waldman v. Palestine Liberation Org., 925 F.3d 570 (2d Cir. 2019) (denying recall of mandate under ATCA)
- Sokolow v. Palestine Liberation Org., 140 S. Ct. 2714 (2020) (Supreme Court vacated and remanded in light of PSJVTA)
- Daimler AG v. Bauman, 571 U.S. 117 (2014) (limits on general jurisdiction; "at home" formulation)
- Walden v. Fiore, 571 U.S. 277 (2014) (specific jurisdiction requires suit‑related forum contacts)
- Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (consent can be an independent basis for jurisdiction)
- Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982) (consent as jurisdictional basis)
- Jacobson v. United States, 15 F.3d 19 (2d Cir. 1994) (procedures for limited remand)
- Taylor v. United States, 822 F.3d 84 (2d Cir. 2016) (standards for recalling a mandate)
- Calderon v. Thompson, 523 U.S. 538 (1998) (finality considerations in remedying judgments)
- Livnat v. Palestinian Auth., 851 F.3d 45 (D.C. Cir. 2017) (concluding lack of jurisdiction over Palestinian entities in ATA suits)
- Est. of Klieman v. Palestinian Auth., 923 F.3d 1115 (D.C. Cir. 2019) (similar jurisdictional conclusion)
- Shatsky v. Palestine Liberation Org., 955 F.3d 1016 (D.C. Cir. 2020) (same as to PLO and PA)