December 17, 2024 | Volume 32, Issue 3
This Report summarizes an opinion issued on December 10, 2024 (Part I); and cases granted review on November 22 and December 6 and 13, 2024 (Part II).
OPINIONS
Bouarfa v. Mayorkas, 23-583.
The Court unanimously held that under 8 U.S.C. §1155, revocation of approval of a visa petition is a decision “in the discretion of” the Secretary of Homeland Security; federal courts therefore lack jurisdiction to review the revocation. Petitioner Amina Bouarfa, a U.S. citizen, filed an immigrant visa petition on behalf of her noncitizen husband Ala’a Hamayel. Such a petition is the first step for a noncitizen spouse of a U.S. citizen seeking to obtain permanent legal residency status. The U.S. Citizenship and Immigration Services (USCIS) initially approved Bouarfa’s petition, but later revoked the approval after discovering evidence that (before he married Bouarfa) Hamayel had previously entered into a ”sham” marriage to evade U.S. immigration laws. Had USCIS discovered that information when Bouarfa’s petition was initially pending, 8U.S.C. §1154(c) would have required the agency to “deny the petition.” Because the agency had initially approved the petition, however, §1155 provided the relevant standard. That section states that the Secretary of Homeland Security “may, at any time,” revoke approval “for what he deems to be good and sufficient cause.” After USCIS’s revocation, the Board of Immigration Appeals affirmed, holding that “good and sufficient cause” existed because the sham-marriage finding would have precluded initial approval. Bouarfa challenged the revocation in federal district court. The government, however, successfully argued that the court should dismiss because 8 U.S.C. §1252(a)(2)(B)(ii) bars judicial review of decisions “of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary.” The Eleventh Circuit affirmed on the same basis: §1155 makes revocation a discretionary decision, and §1252 strips the courts of jurisdiction over any such decision. In an opinion by Justice Jackson, the Court affirmed.
Starting its analysis with the statute’s text, the Court explained that the word “may” in §1155 “clearly connotes discretion.” (Citation omitted.) Additionally, the statute “exudes” discretion by giving the Secretary broad authority to revoke approval “at any time” and for any reason “he deems to be good and sufficient cause.” The Court also looked to the context of the jurisdiction-stripping provision, §1252(a)(2)(B)(ii). It noted that a neighboring provision, §1252(a)(2)(B)(i), also uses the word “may” and gives the Attorney General power to grant relief from removal in ways that the Court’s precedent describes as discretionary. With respect to consequences, the Court explained that its holding would not necessarily always mean that visa petitioners lose. That is because “discretion is a two-way street,” and Congress, by its use of permissive language in §1155, “also vested the Secretary with discretion to decline to revoke an approval the agency previously gave.” Moreover, a spouse of a noncitizen may generally “fil[e] another petition on behalf of the same” person if an approval is revoked.
The Court then addressed Bouarfa’s counterarguments. First, it rejected the notion that §1154(c)’s language requiring mandatory denial of a petition in the face of a sham-marriage determination also requires the agency to revisit its “prior approval” on an ongoing basis and revoke approval—without exercising discretion—if there is a sham-marriage determination. The Court rejected that argument because §1154(c) does not mention revocation. It also rejected Bouarfa’s argument that the statutory scheme as a whole “implicitly require[s]” the Secretary to continually revisit approvals. Instead of being required to revisit approvals, the Court noted, the Secretary has “discretion” to do so throughout the process by which a noncitizen seeks permanent status.
The Court also rejected Bouarfa’s argument that the Secretary, “as a practical matter,” always revokes approval after a sham-marriage determination. Whether the Secretary has a uniform practice does not alter the discretionary nature of the statutory grant of authority. The Court then disposed of the argument that it is unreasonably asymmetrical to allow judicial review of sham-marriage determinations at the outset of considering a petition but not after the petition is initially approved. “That distinction ‘reflects Congress’ choice to provide reduced procedural protection for discretionary relief.’” (Citation omitted.) Finally, the Court dismissed arguments about the application of its precedent on §1252(a)(2)(B)(ii)’s neighboring provision and about a “general ‘presumption’” of judicial review for agency action.
CASES GRANTED REVIEW
Federal Communications Comm’n v. Consumers’ Research, 24-354;
Schools, Health & Libraries Broadband Coalition v. Consumers’ Research, 24-422.
These consolidated cases concern the nondelegation doctrine’s application to the FCC’s Universal Service Fund (the Fund). “Universal service” is a central mission of the FCC and refers to promoting widely available telecommunications services throughout the nation. The Fund was established pursuant to the Telecommunications Act of 1996 (the Act) to further that goal. It requires interstate telecommunications carriers to “contribute” money to the Fund “on an equitable and nondiscriminatory basis.” 47 U.S.C. §254(a). The FCC is required to put Fund money toward providing universal service to Americans. See id. The Act lists several “principles” that govern the FCC’s discretion in administering the Fund and several factors the FCC must consider when determining whether a particular service should be subsidized. See 47 U.S.C. §254(b), (c). The FCC has established four “universal service programs” under the Act, including a program to subsidize telecommunications services for schools and libraries.
The Universal Service Administrative Company (the Company)—a private, not-for-profit corporation—is the “permanent Administrator” of the Fund. 47 C.F.R. 54.701(a). One of its duties is to distribute Fund money to beneficiaries under FCC rules. The Company may not “make policy, interpret unclear provisions of the statute or rules, or interpret the intent of Congress.” 47 C.F.R. 54.702(c). Furthermore, the Company’s bylaws state that its sole stockholder, an association of telecommunications carriers, must “act in compliance with” the FCC’s “Rules and Orders when exercising its stockholder duties and powers.” The FCC oversees the Company in other ways as well: for example, the FCC chair selects the Company’s directors. Additionally, if a party is aggrieved by a decision of the Company, it may seek de novo review of the decision by the FCC. 47 C.F.R. 54.719–54.725. Carriers are required to make quarterly contributions to the Fund, and the amounts of the contributions are determined according to a formula that involves both the FCC’s and the Company’s calculations.
In case 24-354, respondents are a nonprofit organization, a carrier, and a group of consumers. After the FCC publicly announced a proposed 25.2% contribution factor for the first quarter of 2022, respondents filed comments requesting the FCC set the factor at 0% instead. They argued that the universal service programs were predicated on an unconstitutional delegation of Congress’ power to the FCC and, in turn, of the FCC’s power to the Company. After the FCC took no action for 14 days, the 25.2% factor was deemed approved. Respondents then filed a petition for review in the Fifth Circuit. Although the panel denied the petition, the full court granted rehearing en banc and then granted the petition by a 9-7 vote. 109 F.4th 743.
The en banc Fifth Circuit majority first stated that the Act “may” have impermissibly delegated legislative authority to the FCC without an “intelligible principle” governing the FCC’s discretion, in violation of the nondelegation doctrine. And, in turn, the FCC “may” have improperly delegated the taxing power to the Company. Instead of finding a constitutional defect based on either of these delegations alone, however, the court held that the “combination” of both “delegation[s]” violated the “Legislative Vesting Clause” in Article I, Section 1 of the Constitution. Although thus holding that the FCC’s implementation of the statutory scheme was unconstitutional, the court did not go so far as to hold §254 of the Act unconstitutional on its face.
The FCC argues that the administration of the Fund does not involve any impermissible delegation of governmental power. First, the FCC argues that the Act’s grant of authority to it satisfies the “intelligible principle” standard of J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928)—a forgiving standard under which most nondelegation challenges have failed. Under J.W. Hampton, if Congress provides an intelligible principle to govern an agency’s use of power, the conferral of that power is usually determined to be a mere grant of “discretion.” The FCC argues that the Act “provides far more detailed guidance than others that” the Court “has upheld.” For one, it lists six principles that the FCC is required to follow when setting policy to promote the goal of universal service. See 47 U.S.C. §254(b)(1)-(6). The government also points to the Act’s specification of “the entities that must pay universal service contributions”; its requirement that contributions be “equitable and nondiscriminatory”; its description of the qualifications of telecommunications services that may be funded and the proper beneficiaries and purposes for funding; and constraints on the “size and budget” of the universal service program as limitations on the FCC’s discretion. The FCC concedes that the Act does not provide “bright-line rules,” but argues that such rules are not required.
As to the second layer of alleged delegation—from the FCC to the Company—the FCC argues that no impermissible delegation exists because the FCC ultimately decides the amount of carriers’ quarterly contributions. The FCC points to the rules and oversight provisions that constrain the Company’s authority in making projections, and it emphasizes the de novo review provision that allows aggrieved carriers to seek review of the Company’s actions. Responding to the Fifth Circuit’s criticism that the FCC does not in fact exercise rigorous supervision of the Company’s actions, the FCC cites past instances in which it “departed from the [Company’s] projections” or “disagreed with the [Company’s] calculation of the contributions owed by individual carriers.”
Finally, the FCC argues that the Fifth Circuit’s “combination” theory—the theory it applied to find the Fund unconstitutional—is inconsistent with Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). That case involved a challenge to a two-tiered alleged delegation in which an agency was given statutory authority to set coal prices and the agency, in turn, relied on proposals from private coal companies. The Court rejected nondelegation challenges to each tier of this scheme and did not undergo an analysis of whether the two alleged delegations, combined, created constitutional problems.
Catholic Charities Bureau, Inc. v. Wisconsin Labor Review Comm’n, 24-154.
The Court will review a Wisconsin Supreme Court decision holding that Catholic Charities of the Diocese of Superior and several sub-entities―which are controlled by the church―do not qualify for a Wisconsin exemption from its state unemployment tax system because they are not “operated primarily for religious purposes.” The Federal Unemployment Tax Act exempts church-controlled religious organizations “operated primarily for religious purposes” from payment of the unemployment tax. 26 U.S.C. 3309(b)(1)(B). Forty-seven states, including Wisconsin, have adopted language identical, or nearly identical, to that language.
Petitioner Catholic Charities Bureau is the social ministry arm of a diocese of the Roman Catholic Church. It states that its mission is “[t]o carry on the redeeming work of our Lord by reflecting gospel values and the moral teaching of the church,” which it carries out by “providing services to the poor and disadvantaged as an expression of the social ministry of the Catholic Church.” Catholic Charities offers various charitable services partly through four separately incorporated sub-entities, the other petitioners. These organizations provide no religious training or orientation to those receiving services from them, and none of them attempts to “inculcate the Catholic faith” or receives funding from the Roman Catholic Church. In 2016—after a different sub-entity of Catholic Charities was held to qualify for the unemployment tax exemption—Catholic Charities and the sub-entities sought a similar determination from respondent Wisconsin Department of Workforce Development (DWD). DWD concluded that Catholic Charities and its sub-entities were not operated primarily for religious purposes. An administrative law judge reversed, but respondent Labor and Industry Review Commission (LIRC) reversed in turn. Catholic Charities and the sub-entities turned to the Wisconsin state courts, where further reversals followed, culminating in the Wisconsin Supreme Court ruling in favor of the LIRC and holding that Catholic Charities and the sub-entities were not entitled to the tax exemption. 3 N.W.3d 666.
The Wisconsin Supreme Court held that whether an entity was “operated primarily for religious purposes” required an “objective inquiry” into the entity’s “activities” to determine whether they were “‘primarily’ religious in nature.” The court applied “criteria” that would be “strong indications that the activities are primarily religious in nature” which focused on “[t]ypical” forms of religious exercise: whether the entity proselytized, whether it “participated in worship services, religious outreach, ceremony, or religious education,” and whether its employment and ministry are “open to all participants regardless of religion.” Applying those criteria, the court found that Catholic Charities and its sub-entities’ “activities are primarily charitable and secular” because the organization does not “attempt to imbue program participants with the Catholic faith nor supply any religious materials to program participants or employees,” and because its services “are open to all participants regardless of religion.” The Wisconsin Supreme Court rejected Catholic Charities and its sub-entities’ federal constitutional arguments. Specifically, the court found no Establishment Clause violation because the statutorily required “neutral and secular inquiry” into petitioners’ “actual activities” does not improperly “cross into an evaluation of religious dogma.” The court held that the statute as interpreted did not violate the church autonomy principle because it neither “regulate[d] internal church governance nor mandate[d] any activity.” And the court held that the law did not violate petitioners’ free exercise rights because imposing a generally applicable tax is not a constitutionally significant burden.
Catholic Charities and its sub-entities argue in their petition that the Wisconsin statute, as interpreted by the state supreme court, violates the First Amendment in several ways. First, they argue, “Wisconsin’s rule expressly discriminates among religious groups, violating both Religion Clauses.“ It does so by denying the exemption precisely because petitioners’ “religious beliefs and exercise differed from what the Wisconsin Supreme Court thought were ‘typical’ religious activities,” which “wrongly disfavors those religious traditions that ask believers to care for the poor without strings attached.” And, they say, “Wisconsin’s rule also violates the bedrock principle of neutrality among religions by discriminating against religious groups with more complex polities.” Catholic Charities and its sub-entities next argue that the Wisconsin rule violates the Religion Clauses because it “entangles courts in religious questions” “by requiring Wisconsin agencies and courts to conduct an intrusive inquiry into the internal affairs of religious organizations seeking the [] exemption. That kind of detailed inquisition into the beliefs, practices, and operations of a religious body will always entangle Church and State.” (Citation omitted.) Finally, petitioners argue that “[t]he decision below interferes with church autonomy” by penalizing them “because they are organized as separately incorporated bodies in accordance with the Catholic principle of subsidiarity,” and by “not credit[ing] activities that could be ‘provided by organizations of either religious or secular motivations’ as religious.”
Diamond Alternative Energy, LLC v. EPA, 24-7.
The Court will review a D.C. Circuit decision holding that fuel producers lack Article III standing to challenge a waiver EPA granted California under the Clean Air Act “to set its own standards for greenhouse-gas emissions and to adopt a zero-emission-vehicle mandate, both expressly intended to address global climate change by reducing California vehicles’ consumption of liquid fuel.” Section 209(a) of the Act prohibits States from “adopt[ing] or attempt[ing] to enforce any standard relating to the control of emissions from new motor vehicles.” Section 209(b), however, creates an exception: it authorizes EPA to “waive” preemption for California. California may apply for a waiver if it “determines that [its own] State standards will be, in the aggregate, at least as protective of public health and welfare as applicable Federal standards.” EPA must deny the waiver if, among other things, it finds that California’s protectiveness determination is “arbitrary and capricious” or if California “does not need such State standards to meet compelling and extraordinary conditions.” Other States may “adopt and enforce” California standards “for which a waiver has been granted.”
In 2012, California applied for a waiver to allow it to impose standards aimed at curbing greenhouse-gas emissions. The standards include a “zero-emission vehicle” mandate, which requires each car manufacturer (for new vehicles for model years 2015 through 2025) to produce and deliver for sale an increasing percentage of electric or fuel-cell vehicles (or purchase regulatory “credits” instead). EPA went back and forth on whether to accept California’s waiver. Most recently, in 2022 EPA granted California’s waiver. In May 2022, petitioners―entities that produce or sell liquid fuels and the raw materials used to produce them, along with associations whose members include such entities―sought review of that decision in the D.C. Circuit. (A group of states led by Ohio did as well, but their case is not at issue here.) Another group of states and local governments, led by California, intervened in defense of the waiver, as did four groups of private entities.
The D.C. Circuit held that petitioners lacked Article III standing to challenge EPA’s 2022 waiver. The court concluded that petitioners had failed to show that their injuries would be redressed if EPA’s decision were set aside. The court reasoned that petitioners “failed to point to any evidence affirmatively demonstrating that vacatur of the waiver would be substantially likely to” prompt automakers to produce fewer electric vehicles or alter their prices so that fewer would be sold. The court found that manufacturers were “transition[ing] toward electric vehicles, irrespective of California’s regulations,” due to “‘market forces’” in that state. And evidence indicated that “manufacturers need years of lead time” to “make changes to their future model year fleets.”
Petitioners argue that when they “filed suit, EPA’s waiver controlled for the next four years. As a matter of common sense, if that waiver were set aside and California were unable to require automakers to produce electric vehicles instead of liquid-fuel vehicles, automakers would make or sell at least one more liquid-fuel vehicle over the course of those four years. That is the whole point of this hard-fought litigation: that the waiver would do something to reduce California vehicles’ consumption of liquid fuel, which necessarily would shift at least a dollar of business away from liquid-fuel sellers. Indeed, the federal government—never one shy about raising standing objections—did not even contest petitioners’ Article III standing. Yet the court of appeals blinded itself to the obvious, and faulted petitioners for failing to prove by affidavit how third-party automakers would naturally behave.” Put another way, “petitioners’ injury arises from the ‘determinative or coercive effect’ of California’s standards on third-party automakers. By requiring automakers to produce vehicles that consume less or no liquid fuel, California’s standards and EPA’s waiver pose a legal barrier to the use of petitioners’ products that a favorable decision would redress. Under this Court’s cases, no more is needed.” (Citation omitted.)
Rivers v. Lumpkin, 23-1345.
At issue is whether 28 U.S.C. §2244(b)(2)―which imposes stringent gatekeeping requirements on “second or successive habeas corpus applications”―applies when a prisoner seeks to amend his initial habeas application while it was pending on appeal. The relevant statutory background is as follows: A state prisoner who seeks federal habeas relief faces strict limits on filing multiple applications. Under 28 U.S.C. §2244(b), “[a] claim presented in a second or successive habeas corpus application under section 2254” must be dismissed unless it “presents a claim not previously raised that satisfies one of the two grounds articulated in §2244(b)(2).” Burton v. Stewart, 549 U.S. 147, 153 (2007). In addition, before the district court may even consider a “second or successive” application, the habeas petitioner must “move in the appropriate court of appeals for an order authorizing the district court to consider” it. 28 U.S.C. §2244(b)(3)(A).
Petitioner Danny Rivers was convicted in a Texas state court of possession of child pornography and child sex-abuse charges. The prosecution’s case relied heavily on two digital files containing alleged child pornography that were found on a laptop in Rivers’ house. While preparing his state postconviction application, Rivers asked his trial counsel to send him their file on his case, but they did not respond. Without the case file, Rivers filed a state postconviction application alleging (among other things) ineffective assistance of counsel based on trial counsel’s alleged failure to “perform an objectively reasonable investigation” or “verify the ages” of individuals depicted in the alleged child pornography. After considering affidavits and other evidence, the state trial court held that Rivers’ trial counsel were not ineffective. The Texas Court of Criminal Appeals affirmed.
Rivers then filed his first federal habeas application under 28 U.S.C. §2254, raising (among other claims) ineffective assistance based on trial counsel’s alleged failure to reasonably investigate. The district court denied the application. While Rivers’s motion for a certificate of appealability (COA) from that denial was pending, he received access to his case file. The file contained an investigator’s report that, in Rivers’ view, casts doubt on whether the alleged child pornography from the laptop was, in fact, child pornography. For example, in the report, one of the images at issue was labeled “NOT CHILD PORN.” With this evidence, Rivers sought to supplement the appellate record in his habeas case. Although the Fifth Circuit granted Rivers a COA on his ineffective-assistance claim, it denied his motion to supplement the record. It also denied his motion to stay the appeal or remand so the district court could consider Rivers’ new evidence. Later, the Fifth Circuit also affirmed the district court’s denial of Rivers’ habeas application on the merits.
While the appeal of his first application was still pending, Rivers filed a new §2254 application in the district court, raising an ineffective-assistance claim predicated on his counsel’s alleged failure to present exculpatory evidence. Rivers also raised other new claims that he argued arose from the newly discovered evidence in the case file. The district court held that the application was “second or successive” and that it lacked jurisdiction under §2244(b)(3)(A) because Rivers had not moved the Fifth Circuit for leave to file a “second or successive” application. Therefore, the district court transferred the application to the Fifth Circuit. The Fifth Circuit affirmed, holding that “filings introduced after a final judgment that raise habeas claims, no matter how titled,” are “second or successive” habeas applications under §2244(b)(2). 99 F.4th 216.
Rivers argues that the Fifth Circuit was wrong under Banister v. Davis, 590 U.S. 504 (2020). In Banister, the Court held that a Rule 59(a) motion to alter or amend the judgment in a habeas proceeding did not constitute a “second or successive” application but was instead “part and parcel of the first habeas proceeding.” Rivers asserts that this holding is inconsistent with the Fifth Circuit’s approach of tying “second or successive” to whether there is a “final judgment” from the district court. And he cites other Supreme Court decisions that, he argues, also did not apply §2244(b)’s requirements to “post-final-judgment” applications.
Rivers also argues that the Banister Court described two principal sources of “guidance” for determining whether §2244(b)(2) applies: first, whether the filing would have been considered “abuse of the writ” historically, and second, whether the filing is consistent with the purposes of the Antiterrorism and Effective Death Penalty Act (AEDPA), which Rivers describes as “conserving judicial resources, reducing piecemeal litigation, and achieving finality ‘within a reasonable time.’” (Citations omitted.) On the history point, Rivers argues that pre-AEDPA “abuse of the writ” doctrine barred second habeas applications only after appellate review of the first application concluded. On the AEDPA-purposes point, Rivers argues that judicial-economy considerations favor treating applications like his second one as “part and parcel of the initial habeas application.” That is largely because the district court was already familiar with the record in his case and would (he argues) have been able to assess the implications of the new evidence more efficiently than the Fifth Circuit could. Rivers also argues that putting his new application before the district court in the first instance would streamline the litigation and promote finality by allowing that court to adjudicate all of his claims, with the new evidence, at once before the Fifth Circuit considered them.
Respondent—Texas’s Director of the Department of Criminal Justice—counters that the Fifth Circuit properly applied the Court’s precedents, particularly Gonzalez v. Crosby, 545 U.S. 524 (2005), by focusing on “the nature of the relief sought” in Rivers’ second application and finding it to simply be a second bite at the substantive apple. Stated respondent, “[t]he only legally available way to merge Rivers’ new habeas claims into his first-in-time petition’s already completed judgment is a Rule 60(b) motion, which this Court in Gonzalez already established would be a successive petition.” Respondent next counters that the “Court has previously explained that the text of AEDPA as written—and not pre-AEDPA doctrines like abuse of the writ—controls whether a filing is successive.” And as to AEDPA’s aims, respondent says that “[a]llowing petitioners to raise habeas claims ad infinitum during the post-judgment pendency of the initial petition runs contrary to §2244(b)’s purpose to conserve judicial resources, reduc[e] piecemeal litigation, and lend[] finality to state court judgments within a reasonable time.” (Quotation marks omitted.)
Fuld v. PLO, 24-20, United States v. PLO, 24-151.
In these consolidated cases, the Court will review the constitutionality of the bases for personal jurisdiction set forth under the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA). In the first predecessor case, the Sokolow plaintiffs sued the respondents Palestinian Liberation Organization and Palestinian Authority (hereafter the PLO) under the Anti-Terrorism Act (ATA) in 2004 in district court and were awarded $218.5 million in damages after trial in 2015. On appeal, the Second Circuit reversed for lack of personal jurisdiction. While sovereign states are not entitled to due process protection, the circuit held that the PLO and PA enjoy due process rights because neither is recognized as a sovereign state. It also held that the test for personal jurisdiction is the same under both the Fifth and Fourteenth Amendments: the former considers defendant’s contacts throughout the United States, while the latter considers only the contacts with the forum state. Applying these standards, it held that U.S. courts could not exercise jurisdiction because the defendants were “at home” in Palestine where they govern and the conduct giving rise to liability “occurred entirely outside the territorial jurisdiction of the United States.” The Supreme Court denied certiorari.
Congress then enacted the Anti-Terrorism Clarification Act of 2018 (ATCA), which provided that respondents would be “deemed to have consented to personal jurisdiction” in ATA cases if they either accepted forms of assistance from the U.S. or benefited from a waiver to establish or maintain premises in the U.S. The Sokolow plaintiffs attempted to revive their case based on the ATCA, but the Second Circuit declined, finding neither condition of the ATCA satisfied. While the Sokolow plaintiffs’ second petition for certiorari was pending, Congress enacted the PSJVTA in 2019, superseding the ATCA’s personal jurisdiction provisions. The PSJVTA provides that respondents “shall be deemed to have consented to personal jurisdiction” in an ATA suit upon engaging in certain forms of post-enactment conduct, namely, (1) making payments, directly or indirectly, to the designees or families of incarcerated or deceased terrorists, respectively, whose acts of terror injured or killed a United States national, or (2) undertaking any activities within the United States, subject to a handful of exceptions.
In April 2020, the Court issued a GVR in the Sokolow case in light of the PSJVTA. Shortly after, the Fuld action was filed invoking the PSJVTA as the sole basis for personal jurisdiction. The Fuld action alleges that the PLO had “encouraged, incentivized, and assisted” the nonparty who committed an attack on a U.S. citizen in the West Bank. The district courts in Fuld and Sokolow held the relevant provisions of the PSJVTA unconstitutional and granted respondents’ motions to dismiss for lack of personal jurisdiction. The Second Circuit affirmed. 82 F.4th 74.
The Second Circuit held that the PSJVTA’s “deemed consent” scheme “cannot support a fair and reasonable inference of the defendants’ voluntary agreement to proceed in a federal forum.” The court maintained that “Congress cannot take conduct otherwise insufficient to support an inference of consent, brand it as ‘consent,’ and then decree that a defendant, after some time has passed, is ‘deemed to have consented’ to the loss of a due process right for engaging in that conduct.” In the Second Circuit’s view, this “unprecedented framework for consent-based jurisdiction” is incompatible with due process requirements because it cannot be reconciled with “traditional notions of fair play and substantial justice” under International Shoe v. Washington. The court also reaffirmed circuit precedent holding that “the due process analyses” for personal jurisdiction “under the Fifth and Fourteenth Amendments parallel one another in civil cases.”
In support of certiorari, Fuld argues that review is particularly warranted given that the PSJVTA was enacted by Congress, in direct response to lower-court decisions in this case, for the express purpose of deterring international terrorism. The circuit court’s decision, Fuld says, improperly imputes Fourteenth Amendment standards to the federal government. Further, Fuld argues, the opinion below impermissibly invents a new “reciprocity” test, under which a deemed-consent statute is valid only if the defendant receives a “governmental benefit” in return for submitting to jurisdiction. In its separate petition, the United States presents similar arguments for certiorari. The United States argues that the Second Circuit’s due process holding misapplies the principles of International Shoe as applied to the PLO, which constructively consented to personal jurisdiction based on its knowing and voluntary actions that triggered the PSJVTA. According to the government’s petition, due process involves “a flexible approach” focused on fairness, and these fairness concerns are not implicated where the PLO is a sophisticated entity that engages internationally and within the United States. The United States also urges the Court to address the question whether the Fifth and Fourteenth Amendments restrict personal jurisdiction in the same way.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Mana Barari, Supreme Court Fellow
- Elizabeth Hedges, Supreme Court Fellow
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