Sokolow v. Palestine Liberation Organization

Background

The plaintiffs brought this action in 2004 against the Palestine Liberation Organization and the Palestinian Authority. They asserted claims under the federal Anti-Terrorism Act, 18 U.S.C. § 2333, and various state laws. After a seven-week trial, a jury returned a verdict for the plaintiffs. The Second Circuit later held that the defendants lacked sufficient contacts with the forum for the court to exercise general or specific personal jurisdiction, vacated the judgment, and remanded with instructions to dismiss for lack of personal jurisdiction.

Congress later enacted the Anti-Terrorism Clarification Act and then the Promoting Security and Justice for Victims of Terrorism Act of 2019, or PSJVTA. The PSJVTA provides that, in certain Anti-Terrorism Act cases, a defendant is deemed to have consented to personal jurisdiction if it engages in specified conduct, including making certain payments connected to terrorism or maintaining facilities or conducting activities in the United States.

The Second Circuit remanded the case for the limited purpose of determining whether the PSJVTA applied and addressing related issues, including constitutionality. The federal government intervened and filed briefing supporting the statute’s constitutionality.

Whether the PSJVTA applied

The plaintiffs argued that the statute applied because the defendants made payments after the statutory date to families of people killed while committing acts of terrorism that injured or killed U.S. nationals. They also argued that the defendants maintained an office in New York City and conducted activities in the United States.

The defendants did not contest that they had made payments triggering the statute under one provision. They argued, however, that terrorism convictions obtained in Israeli military trials were not “fairly tried,” as required under another provision. They also argued that their New York office and other activities were connected to official United Nations business and therefore did not trigger the statute.

The court found sufficient evidence that the defendants had continued making payments to families of individuals killed while committing acts of terrorism after April 18, 2020. It found that the payments were made because of the individuals’ deaths and that at least some of the terrorism had harmed U.S. nationals. The court relied on evidence concerning payments to the family of Wafa Idris, who died while committing an act of terrorism that injured five U.S. nationals, including plaintiff Mark I. Sokolow.

The court therefore held that the PSJVTA applied under 18 U.S.C. § 2334(e)(1)(A)(ii). Because that basis was sufficient, the court did not decide whether the statute also applied under the other payment provision or the provisions concerning offices, facilities, or activities in the United States.

Constitutionality and personal jurisdiction

The defendants argued that the PSJVTA’s “deemed consent” provision violated due process because the conduct identified by the statute did not reflect a free and voluntary relinquishment of their right to challenge personal jurisdiction. The plaintiffs argued that the provision validly established implied consent and that the defendants knowingly chose to engage in conduct that triggered the statute. The government argued that courts should defer to the statute because it concerned foreign affairs.

The court explained that personal jurisdiction is an individual right that a defendant may waive or consent to, including by implication. But it held that the conduct identified in the PSJVTA—making payments to families of people killed while committing terrorism—was unrelated to any court order or issue in this litigation. The defendants had not violated discovery orders concerning personal jurisdiction, unlike the conduct supporting implied-consent findings in the cases discussed by the court.

The court concluded that treating the defendants’ payment activity as implied consent to personal jurisdiction would violate the Constitution’s due-process guarantee. Because the court resolved the issue on due-process grounds, it did not reach the government’s separate argument concerning separation of powers and foreign-affairs deference.

Disposition

The court concluded: “The PSJVTA of 2019 is applicable to this case. The statute is unconstitutional.” Judge George B. Daniels entered the memorandum decision and order on March 10, 2022.