Holding Supporters of Terrorism Accountable: the Exercise of General Jurisdiction Over the Pa and Plo in a Post-daimler Framework

• Publication year: 2016

HOLDING SUPPORTERS OF TERRORISM ACCOUNTABLE: THE EXERCISE OF GENERAL JURISDICTION OVER THE PA AND PLO IN A POST-DAIMLER FRAMEWORK

Mark D. Christopher^*

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TABLE OF CONTENTS

PROLOGUE ..................................................................................................101

I. INTRODUCTION ...............................................................................103

II. GENERAL JURISDICTION, DAIMLER, AND THE END OF SIGNIFICANT CONTACTS .................................................................104

A. A History of Personal Jurisdiction...........................................104
B. Daimler and its Effect...............................................................107
C. What Exactly is "At Home "?...................................................108

III. CIVIL LITIGATION UNDER THE ANTI-TERRORISM ACT OF 1991 ....110

A. Litigation Under the Alien Torts Statute..................................110
B. The Anti-Terrorism Act of 1991...............................................112

IV. APPLICATION OF DAIMLER TO UNINCORPORATED, NONSOVEREIGN ENTITIES ......................................................................113

A. Case Law in the District Court of D.C.....................................113
B. Current Cases in the District of Columbia...............................118
C. Cases in the Southern District of New York.............................123

V. GENERAL JURISDICTION AND ANTI-TERRORISM LITIGATION MOVING FORWARD .........................................................................127

A. Application of Due Process Rights to Non-Sovereign, Non-Corporate Entities....................................................................127

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B. Examining Personal Jurisdiction Under the Fifth Amendment Instead of the Fourteenth Amendment..................129
C. The Possibility of Exceptional Cases Under Daimler..............130

VI. CONCLUSION ...................................................................................132

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PROLOGUE

While this Note was undergoing the last stages of revision before publication, the Second Circuit Court of Appeals published its decision in the appeal by the Palestine Liberation Organization (PLO) to the Southern District of New York's judgment in Sokolow v. PLO.¹ The Second Circuit disagreed with the district court and vacated the judgment against the PLO.² Specifically, the court held that the district court did not have personal jurisdiction over the defendants regarding the claims brought against them.³ This Note will briefly cover the recent decision, but the remainder of the Note will remain as originally written as other cases are still pending an appeal which may reintroduce this issue, or if this issue is raised to the Supreme Court.

In the opinion, the court first addressed the three requirements of exercising personal jurisdiction.⁴ First, service of process on the defendant by the plaintiff must have been proper.⁵ Second, such service of process must fulfill a statutory basis for personal jurisdiction to be effective.⁶ Lastly, such "exercise of personal jurisdiction must comport with constitutional Due Process principles."⁷ As the defendants did not dispute the first two requirements, the court only analyzed whether the third prong was met; whether the exercise of jurisdiction over the defendants was consistent with the Constitution.⁸

Before analyzing due process under the Constitution, the court addressed three threshold issues, some of which were addressed in this Note. First, the court noted that the defendants had not waived or forfeited their objection to the district court's exercise of personal jurisdiction because they consistently raised the issue.⁹ Second, the PLO and Palestinian Authority (PA) did have due process rights because they were a non-sovereign entity and neither had been recognized as a sovereign state by the united States, whose determination is conclusive.¹⁰ The Second Circuit Court of Appeals took an alternate viewpoint on this issue than what is described in this Note, which advocated that the court could deem the PA and PLO not to have due process

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rights. Third, the court recognized that a due process analysis was substantially the same under both the Fifth and Fourteenth Amendment to the Constitution, with the principal difference being that under the Fourteenth Amendment, a court can only consider all of the defendant's contacts with the forum state, while under the Fifth Amendment, the court can consider all of the defendant's contacts in the United States.¹¹ Here, the court again analyzed this issue differently from this Note by judging the test to be roughly the same under both legal views.

Rather than review the court's entire analysis of the reasonableness of exercising personal jurisdiction and the minimum contacts of the PA and PLO, this section will briefly cover the parts of the Second Circuit's opinion that related to this Note. Mainly, the court held that the Daimler decision applied not just to corporations, but to all "entities," and therefore, it applied to the defendants in this case.¹² The court also rejected the idea that the defendants' contacts throughout the United States were enough to subject it to general jurisdiction because "there is no doubt that the 'far larger quantum' of the defendants' activities too place in Palestine."¹³ In regards to the "exceptional cases" referenced in Daimler, the Second Circuit rejected that this was such a case.¹⁴ The court stated that such exceptional cases were ones like in Perkins v. Benguet, where the defendants were temporarily located in the United States due to World War II.¹⁵ Nor were the attacks in this case, in the court's opinion, sufficiently aimed at the United States to allow the exercise of personal jurisdiction.¹⁶

Of course, this decision by the Second Circuit eliminates the split between the courts that forms the centerpiece of this Note. The judgments of the District Court of D.C. are still awaiting appeal, though. If the D.C. Circuit decides the issue differently from the Second Circuit, then this Note will once again be an important discussion on the issues at play. Even so, the author hopes that this Note will provide useful background information regarding the exercise of jurisdiction over defendants in terrorism litigation and other jurisdictional issues.

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I. INTRODUCTION

Terrorism is an inescapable aspect of the modern global political landscape. It can be as "small" as a shooting of Jewish worshippers attempting to visit a holy tomb or as "big" as a wave of suicide bombings across an entire country. The United States has felt the effects at home: from shootings by extremists linked to a new threat like the Islamic State, to a layered, orchestrated plot to strike at the symbols of our nation in New York and Washington. Some of these attacks are carried out by lone wolves, independent of support or funding. Others are part of consolidated strategies pushing for political change or disruption.

Plaintiffs in New York and Washington, D.C. have taken it upon themselves to pursue the perpetrators and supporters of these attacks.¹⁷ For decades, litigation has sought some measure of remedy for the victims and their families. In particular, the PA and PLO have been named as defendants in American courts, called to answer allegations that their organizations supported and controlled such attacks.

In New York, plaintiffs have won major victories with record punitive damage awards.¹⁸ In Washington, D.C., though, plaintiffs have found their cases dismissed for lack of personal jurisdiction.¹⁹ The United States Supreme Court's recent decision in Daimler AG v. Bauman²⁰ led the courts in Washington to conclude that they could not exercise general personal jurisdiction over such foreign defendants because they were not "essentially at home" in the forum. In New York, the court found it could exercise personal jurisdiction in spite of the Daimler decision, holding that there was jurisdiction under the Anti-Terrorism Act of 1991 (ATA) and that this jurisdiction fell under the Court's range of possible exceptional cases in Daimler. Currently, all these decisions are on appeal at their respective circuit courts.

This Note will examine the history of personal jurisdiction in the United States and its effects on this litigation. Further, it will review the evolution of anti-terrorism litigation over the last few decades, looking at legislation and its effects on the litigation of terrorism. Next, this Note will analyze the cases pending in the Southern District of New York and the District Court of

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D.C. Finally, this Note will consider the future of this litigation and the possible avenues the circuit courts may follow in deciding these cases. In particular, the courts will have to examine if Due Process rights even apply to the PA and PLO. The courts will also have to determine if the Daimler and Fourteenth Amendment analysis used by the D.C. courts was appropriate or if a Fifth Amendment analysis is required. Lastly, the courts will likely look at the Supreme Court's recognition of exceptional cases under Daimler and whether the PA and PLO fit into that category of defendants.

II. GENERAL JURISDICTION, DAIMLER, AND THE END OF SIGNIFICANT CONTACTS

A. A History of Personal Jurisdiction

The Daimler decision is the latest in the long string of cases read by first year law students. Since the Court's ruling in Pennoyer v. Neff, the Court has produced numerous opinions attempting to narrow down exactly when a court has jurisdiction over a defendant. In Pennoyer, the Court made the landmark decision that "[t]he authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is established."²¹ This established the general limit under the Fourteenth Amendment on the exercise of personal jurisdiction extraterritorially, though that strict approach has loosened...