Shatsky v. The Palestine Liberation Organization

Background

Plaintiffs included the families of two teenage girls killed in a 2002 suicide bombing in Karnei Shomron, United States citizens injured in the attack, and family members of injured people. They sued the Palestine Liberation Organization (PLO) and the Palestinian Authority (PA) under the Anti-Terrorism Act, seeking damages for the attack. Plaintiffs alleged that the PLO and PA were responsible for the bombing, including through an allegation that a government employee planned it and through payments to the family of the suicide bomber. The defendants disputed those allegations, although the opinion states that they made payments to the bomber’s family after the attack.

Motions and jurisdictional framework

The defendants moved to dismiss for lack of personal jurisdiction and separately moved for summary judgment. Personal jurisdiction is a court’s authority to exercise power over a defendant. Plaintiffs relied on the Promoting Security and Justice for Victims of Terrorism Act (PSJVTA), which amended the Anti-Terrorism Act to provide that certain conduct by a defendant, including specified payments or certain offices or activities in the United States, would be treated as consent to personal jurisdiction in an Anti-Terrorism Act lawsuit.

The defendants argued that the PSJVTA’s deemed-consent provisions were unconstitutional because the listed conduct did not establish the constitutionally required connection to the United States or to the lawsuit. Plaintiffs and the United States argued that due process required only knowing and voluntary consent, and that the defendants knowingly and voluntarily continued conduct covered by the statute after receiving notice of it.

Court’s analysis

The court concluded that it was bound by Second Circuit precedent holding that the PLO and PA were entitled to constitutional due-process protections. It agreed with reasoning from similar cases that it was not reasonable to infer an intent to submit to United States courts merely from the conduct that Congress identified in the PSJVTA. According to the court, notice of the statute and the opportunity to change conduct were not enough to establish constitutionally valid consent.

The court also stated that it disagreed with the Second Circuit’s conclusion that the PLO and PA receive due-process protections because the United States has not recognized them as sovereign. The court reasoned that foreign governments generally are not “persons” protected by the Fifth Amendment’s Due Process Clause. Nevertheless, the court stated that it was bound by the Second Circuit’s contrary precedent. It therefore concluded that the PSJVTA was unconstitutional as applied to the PLO and PA and that the court lacked personal jurisdiction.

Disposition

The court granted the defendants’ motion to dismiss for lack of personal jurisdiction without prejudice. Because it lacked jurisdiction, it did not consider the merits of the defendants’ summary-judgment motion and denied that motion as moot. The court also denied all outstanding motions to seal filings and strike exhibits, finding that the asserted confidentiality interests did not overcome the strong presumption of public access to judicial documents. The opinion does not decide whether the PLO or PA were responsible for the bombing or whether plaintiffs could prove their Anti-Terrorism Act claims.