Douglass v. Nippon Yusen Kabushiki Kaisha ( 2021 )


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  •       United States Court of Appeals
    for the Fifth Circuit
    United States Court of Appeals
    Fifth Circuit
    FILED
    April 30, 2021
    No. 20-30382                       Lyle W. Cayce
    Clerk
    Stephen Douglass, individually and as personal representative of the
    Estate of Shingo Alexander Douglass; Dora
    Hernandez, individually and as personal representative of the Estate
    of Noe Hernandez; Lan Huynh, individually and as personal
    representative of the Estate of Ngoc Truong Huynh; Darrold
    Martin, individually and as personal representative of the Estate of
    Xavier Alec Martin; Erin Rehm, individually and as personal
    representative of the Estate of Gary Leo Rehm, Jr.; Lloyd
    Wayne Rigsby, Jr., individually and as personal representative of the
    Estate of Dakota Kyle Rigsby; Carmen Sibayan,
    individually and as personal representative of the Estate of Carlos
    Victor Ganzon Sibayan,
    Plaintiffs—Appellants,
    versus
    Nippon Yusen Kabushiki Kaisha,
    Defendant—Appellee,
    consolidated with
    _____________
    No. 20-30379
    _____________
    No. 20-30382 c/w
    No. 20-30379
    Jhon Alcide; Richard Allen-Easmon; Dustin Angle;
    Jesus Arguello; Valerie Arguello, Et al.,
    Plaintiffs—Appellants,
    versus
    Nippon Yusen Kabushiki Kaisha,
    Defendant—Appellee.
    Appeals from the United States District Court
    for the Eastern District of Louisiana
    USDC Nos. 2:19-CV-13688 & 2:19-CV-13691
    Before King, Elrod, and Willett, Circuit Judges.
    Per Curiam:
    Nippon Yusen Kabushiki Kaisha chartered a ship that collided with a
    U.S. Navy destroyer in Japanese territorial waters. The collision killed seven
    sailors, injured at least forty others, and prompted the two lawsuits
    consolidated before us on appeal. The district court dismissed the cases,
    concluding that personal jurisdiction, under Fed. R. Civ. P. 4(k)(2), over
    Nippon Yusen Kabushiki Kaisha could not be established. For the reasons
    that follow, we AFFIRM.
    I.
    Defendant-appellee Nippon Yusen Kabushiki Kaisha (“NYK Line”)
    was involved in the operation and navigation of its chartered ship that
    collided with the U.S.S. Fitzgerald, a U.S. Navy destroyer, in the territorial
    waters of Japan. The collision killed seven sailors and injured at least forty
    others. After the incident, two sets of plaintiffs filed suit against NYK Line
    in the U.S. District Court for the Eastern District of Louisiana. The Douglass
    2
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    plaintiffs are personal representatives of the seven U.S. sailors killed. They
    filed wrongful death and survival claims under the Death on the High Seas
    Act, 
    46 U.S.C. §§ 30301-08
    . The many U.S. sailors who were injured in the
    collision, along with seventeen family members with consortium claims, sued
    separately as the Alcide plaintiffs. The plaintiffs-appellants in both cases
    asserted personal jurisdiction over NYK Line pursuant to Fed. R. Civ. P.
    4(k)(2), alleging that, despite NYK Line’s status as a foreign corporation, its
    substantial, systematic, and continuous contacts with the United States
    should make NYK Line amenable to suit in federal court.
    NYK Line moved to dismiss for lack of personal jurisdiction under
    Fed. R. Civ. P. 12 (b)(2). The district court granted NYK Line’s motions
    and entered identical judgments in both cases accordingly. The plaintiffs-
    appellants timely appealed, and those appeals were subsequently
    consolidated before us. We are asked to address whether the district court
    could constitutionally exercise personal jurisdiction over NYK Line. Because
    we are bound by the rule of orderliness, existing Fifth Circuit precedent
    leaves us with only one proper outcome, and we affirm.
    II.
    Our review of a district court’s Rule 12(b)(2) dismissal for lack of
    personal jurisdiction is de novo, and we apply the same standards as the
    district court. Patterson v. Aker Sols., Inc., 
    826 F.3d 231
    , 233 (5th Cir. 2016)
    (citing Revell v. Lidov, 
    317 F.3d 467
    , 469 (5th Cir. 2002)).
    III.
    A. Personal Jurisdiction and Fifth Amendment Due Process
    In deciding whether an exercise of personal jurisdiction over NYK
    Line is constitutional, we run up against two threshold questions. First, we
    have to establish which constitutional test governs our analysis. And, second,
    3
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    once we have discerned which test governs, we must then decide how that
    test is applied. We begin by establishing that the Fifth Amendment’s due
    process inquiry controls our analysis here. No one disputes as much. But
    some background will be helpful to understanding the answer to the second
    question—the crux of this dispute. That is, how the Fifth Amendment due
    process test is applied in the personal jurisdiction context, and whether—and
    to what extent—Fourteenth Amendment due process caselaw in that same
    context constrains a Fifth Amendment due process analysis.
    1. Discerning the Relevant Constitutional Test
    As with any personal jurisdiction analysis in federal court, we begin
    with Rule 4(k) of the Federal Rules of Civil Procedure. Synthes (U.S.A.) v.
    G.M. Dos Reis Jr. Ind. Com de Equip. Medico, 
    563 F.3d 1285
    , 1293 (Fed. Cir.
    2009) (“Rule 4 is the starting point for any personal jurisdictional analysis in
    federal court.”). This is so, because, usually, whether a “defendant is
    amenable to service” is a “prerequisite” to a court’s exercise of personal
    jurisdiction. See Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 
    484 U.S. 97
    , 104-
    05 (1987) (“Before a federal court may exercise personal jurisdiction over a
    defendant, the procedural requirement of service of summons must be
    satisfied.”). Here, NYK Line is a foreign defendant and not subject to
    jurisdiction in any state’s courts of general jurisdiction, and the claims
    asserted against it arise under federal law. As a consequence, everyone agrees
    that NYK Line may be properly served, and hence personal jurisdiction can
    be established, only pursuant to Rule 4(k)(2). See generally Fed. R. Civ. P.
    4(k)(2).
    Rule 4(k)(2) was drafted in response to the Supreme Court’s decision
    in Omni Capital International v Rudolf Wolff & Co., 
    484 U.S. at 104
    . In Omni,
    the Supreme Court affirmed the Fifth Circuit’s en banc ruling, concluding
    that a district court lacked personal jurisdiction over the defendants where
    4
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    the case arose under federal law, the federal law at issue was silent as to
    service of process, and the long-arm statute of the state in which the district
    court sat did not reach the defendants. 
    Id. at 100-01, 108
    .
    In doing so, the Court recognized that its holding would result in a
    peculiar hiatus in the rules. 
    Id. at 111
    . Although, under the Federal Rules of
    Civil Procedure as they then existed, it was proper to look to the state long-
    arm statute to determine whether service of process was authorized, this left
    private litigants unable to bring an action under federal law against a foreign
    defendant outside of the reach of the state long-arm statute. 
    Id.
     Nevertheless,
    the Court reasoned that it was not its place to fashion a “narrowly tailored
    service of process provision, authorizing service on an alien in a federal-
    question case when the alien is not amenable to service under the applicable
    state long-arm statute.” 
    Id.
     Rather, the Court called for amending the
    Federal Rules to include such a provision to fill in this gap. 
    Id. at 103
    .
    The Omni decision spawned Rule 4(k)(2). Rule 4(k)(2) provides that,
    if the case is one “aris[ing] under federal law,” federal courts have personal
    jurisdiction to the constitutional limit provided that no state could exercise
    jurisdiction. See Fed. R. Civ. P. 4(k)(2). An exercise of personal
    jurisdiction is “consistent with the United States Constitution,” id, if it
    comports with due process, see Omni, 
    484 U.S. at 104
    . There are two due
    process clauses in the United States Constitution. One is part of the
    Fourteenth Amendment, and it is aimed at regulating the conduct of the
    several states. See U.S. CONST. amend. XIV, § 1. Another is part of the
    Fifth Amendment, and it constrains federal authority. See U.S. CONST.
    amend. V. As Rule 4(k)(2) is directed at federal courts and contemplates a
    defendant’s contacts with the entire United States, as opposed to the state in
    which the district court sits, the constitutional limits contemplated by the
    rule flow from the Fifth Amendment’s Due Process Clause. See Fed. R.
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    Civ. P. 4(k)(2) advisory committee’s note to 1993 amendment (explaining
    that the Fifth Amendment, the basis of jurisdiction under Rule 4(k)(2),
    “requires that any defendant have affiliating contacts with the United States
    sufficient to justify the exercise of personal jurisdiction over that party”).
    The plaintiffs-appellants asserted personal jurisdiction over NYK
    Line pursuant to Fed. R. Civ. P. 4(k)(2), and therefore, everyone agrees
    that any exercise of personal jurisdiction over NYK Line must comport with
    the Fifth Amendment’s due process requirements.
    2. Fifth Amendment Due Process and Existing Caselaw
    This brings us to the core of this dispute. Having established that
    personal jurisdiction is only proper in this case if the Fifth Amendment due
    process test is satisfied, we must now decide how this test is applied. And, on
    this point, the parties disagree.
    NYK Line argues that Fourteenth Amendment due process caselaw
    in this context constrains a Fifth Amendment due process analysis and that
    the jurisdictional test set forth in Daimler AG v. Bauman, 
    571 U.S. 117
     (2014),
    is our guide. Plaintiffs-appellants, supported by distinguished amici, 1 argue
    to the contrary. Because we find plaintiffs-appellants’ position persuasive,
    we explain their position in full here. Ultimately, however, as we explain
    below, we are bound by the rule of orderliness to resolve this case under
    Daimler.
    The upshot of the plaintiffs-appellants’ argument is this: The
    requirements of Fourteenth Amendment due process differ from those of the
    Fifth Amendment. Therefore, in deciding whether a court’s exercise of
    1
    Professors Helen Hershkoff, Arthur R. Miller, Alan B. Morrison, John E. Sexton,
    and Adam N. Steinman filed an Amicus Curiae brief in this case.
    6
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    personal jurisdiction over a defendant comports with the Fifth Amendment’s
    Due Process Clause, we ought not to turn to recent Supreme Court cases
    interpreting the Fourteenth Amendment specifically. Rather, we should look
    to a defendant’s national contacts and follow the basic dictates of
    International Shoe Co., v. Washington, 
    326 U.S. 310
    , 319 (1945). 2 Under the
    proposed “national jurisdiction” test, the inquiry is whether a foreign (i.e.
    non-U.S.) defendant, sued on a federal claim and not amenable to suit in any
    state court, was doing systematic and continuous business in the United
    States, and whether the claim at bar was related to that business. This is why.
    Save for the relevant sovereign, the Fifth and Fourteenth
    Amendments to the U.S. Constitution contain identically worded due
    process clauses. It stands to reason that if the Fourteenth Amendment’s Due
    Process Clause requires consideration of minimum contacts and fairness
    concerns in the context of personal jurisdiction, see Int’l Shoe, 
    326 U.S. at 316, 319
    , so too does the Fifth Amendment’s. This gets us to the question,
    then, of how these two factors translate from the Fourteenth Amendment’s
    Due Process Clause to its Fifth Amendment counterpart.
    The Supreme Court has opined and elaborated on the Fourteenth
    Amendment’s due process requirements and not on the Fifth’s. See J.
    McIntyre Mach., Ltd. v. Nicastro, 
    564 U.S. 873
    , 885 (2011) (plurality opinion);
    2
    At first blush, it seems incongruous to apply International Shoe and not Daimler.
    After all, International Shoe is, too, a Fourteenth Amendment case. See 
    326 U.S. at 313
    . But
    the line drawn at International Shoe and its early progeny is not arbitrary. Presumably, the
    drafters of Rule 4(k)(2) crafted the rule against the background of jurisdictional doctrine as
    it existed in 1993. That doctrine was rooted in the jurisprudence of International Shoe, under
    which companies could be sued if they had “systematic and continuous” contacts with the
    forum-state. 
    326 U.S. at 320
    . The plaintiffs-appellants are not asking that none of the
    Supreme Court’s existing decisions help guide the analysis. They only ask that the modern
    access-restrictive trend of more recent decisions, see Patterson, 826 F.3d at 234 n.5, be read
    to apply solely to state courts.
    7
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    see also Bristol-Myers Squibb Co. v. Superior Court of Cal., S.F. Cnty., 
    137 S. Ct. 1773
    , 1784 (2017) (leaving open the Fifth Amendment question); Omni,
    484 U.S. at
    102 n.5 (stating that the court has no occasion to address the Fifth
    Amendment’s applicability to personal jurisdiction through national
    contacts); Asahi Metal Indus. Co. v. Superior Court of Cal., Solano Cnty., 
    480 U.S. 102
    , 113 n.* (1987) (same).
    While the Fourteenth Amendment measures contacts with the state,
    the Fifth Amendment considers contacts with the entire United States. See
    Fed. R. Civ. P. 4(k)(2) advisory committee’s note to 1993 amendment.
    To the extent that the Fourteenth Amendment’s Due Process Clause ties the
    definition of the minimum contacts to state sovereignty, the Fifth
    Amendment’s clause should consider the sovereignty of the United States.
    The Supreme Court made clear that state-sovereignty (i.e. federalism)
    concerns were central to its interpretation of the Fourteenth Amendment’s
    Due Process Clause. For instance, in Bristol-Myers Squibb v. Superior Court,
    the majority opinion noted that the Fourteenth Amendment’s Due Process
    Clause “acting as an instrument of interstate federalism,” restrains a state
    from exercising jurisdiction in certain cases. 137 S. Ct. at 1788 (quoting
    World-Wide Volkswagen Corp. v. Woodson, 
    444 U.S. 286
    , 294 (1980)); 
    id.
    (Sotomayor, J., dissenting) (“The majority’s animating concern, in the end,
    appears to be federalism[.]”). The same state-sovereignty concerns were
    discussed in Daimler. In fact, the separate opinion in Daimler criticized the
    majority for “unduly curtail[ing] the States’ sovereign authority to
    adjudicate disputes.” Daimler, 571 U.S. at 157 (Sotomayor, J., concurring in
    the judgment).
    8
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    But federalism concerns are not present in the Fifth Amendment
    context. 3 The Supreme Court plurality in J. McIntyre Machinery v. Nicastro,
    
    564 U.S. at 873
    , explicitly endorsed the possibility of a different personal
    jurisdiction analysis for federal courts. Recognizing the implications of its
    sovereignty-based approach, the plurality wrote: “Because the United States
    is a distinct sovereign, a defendant may in principle be subject to the
    jurisdiction of the courts of the United States, but not of any particular
    State.” Nicastro, 
    564 U.S. at 884
    .
    The plaintiffs-appellants’ proposed test, then, taking Nicastro at its
    word, shifts the focus away from federalism concerns and instead accounts
    for any sovereignty concerns that might arise in an international context. Just
    as under Bristol-Myers Squibb the way to account for state-sovereignty
    considerations was to ensure that sufficient minimum contacts with the state
    were tied to the incident at hand, 137 S.Ct. at 1783, the requisite minimum
    contacts with the United States must be so related to the claim at issue. That
    is, as amici put it, the court would ask “whether a non-U.S. defendant, sued
    on a federal claim and not amenable to suit in any state court, was doing
    systematic and continuous business in the United States, and whether the
    claim was related to that business.”
    Just as fairness concerns play a role in the Fourteenth Amendment
    due process analysis, fairness concerns suggest that the Fifth Amendment’s
    clause should preclude foreign nonresident defendants with no ties to the
    United States from being called upon to defend suits in the United States.
    3
    The Supreme Court must have recognized as much, for in its Fourteenth
    Amendment caselaw it explicitly stated that it was not addressing the question on appeal
    here. Bristol-Myers Squibb, 137 S. Ct. at 1784 (majority op.) (“[W]e leave open the question
    whether the Fifth Amendment imposes the same restrictions on the exercise of personal
    jurisdiction by a federal court.”) (citing Omni Capital, 
    484 U.S. at
    102 n.5).
    9
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    And this concern highlights an important reason to differentiate between the
    interpretation of the two clauses: the limited constitutional rights of foreign
    defendants. After all, constitutional protections for non-U.S. parties in U.S.
    courts differ from those afforded to U.S. citizens. See, e.g., Dep’t of Homeland
    Sec. v. Thuraissigiam, 
    140 S. Ct. 1959
    , 1981-83 (2020); U.S. Agency for Int’l
    Dev. v. Alliance for Open Society Int’l, Inc., 
    140 S. Ct. 2082
    , 2086-87 (2020). 4
    Given these meaningful differences, we are persuaded that, in this
    context, the bounds of Fifth Amendment due process are likely not wholly
    defined by modern Fourteenth Amendment caselaw. 5
    Only one of our sister circuits has thoroughly analyzed whether, in this
    context, the Fourteenth Amendment and Fifth Amendment standards are
    the same. See Livnat v. Palestinian Auth., 
    851 F.3d 45
    , 55 (D.C. Cir. 2017). 6
    4
    A “national jurisdiction” test would nevertheless employ a number of backstops
    to ensure fairness to the foreign defendant. For example, International Shoe’s requirement
    “that the maintenance of the suit does not offend traditional notions of fair play and
    substantial justice” would remain part of the calculus. 
    326 U.S. at 316
    .
    5
    As plaintiffs-appellants argue, it is also true that if we assume specific and general
    jurisdiction are the only two available tests for personal jurisdiction under the Fourteenth
    Amendment, and that these two tests equally limit the Fifth Amendment’s due process
    inquiry, Rule 4(k)(2) has a limited applicability. Under these circumstances, Rule 4(k)(2)
    would be effective only in the exceptional case where (1) a defendant had minimum
    contacts with a forum state that has a long-arm statute that stops short of the Constitution;
    (2) the defendant’s contacts fall between the constitutional and statutory lines; and (3) no
    other state is available. But, of course, our interpretation of what the Constitution requires
    does not depend on that interpretation’s effect on the rule. Rather, the meaning of the rule
    depends on the Constitution.
    6
    To be sure, however, many have assumed without deciding, or otherwise
    concluded without explanation, that the two standards are the same. See GCIU-Emp. Ret.
    Fund v. Coleridge Fine Arts, 808 F. App’x 655, 665 n.3 (10th Cir. 2020) (“Because no party
    in the case at bar draws any distinction between the Fifth and Fourteenth Amendments
    with respect to the ‘purposeful direction’ and ‘arising out of’ requirements, we assume
    without deciding that these restrictions are the same under either Amendment.”);
    10
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    We find unpersuasive the D.C. Circuit’s conclusion that Fifth Amendment
    due process standards must track those imposed by the Fourteenth
    Amendment. In part, the D.C. Circuit relies on its finding that “the Supreme
    Court [has] applied Fourteenth Amendment personal-jurisdiction standards
    in Fifth Amendment cases.” Id. at 54 (relying on Argentina v. Weltover, Inc.,
    
    504 U.S. 607
     (1992)). This is not the case. 7
    The D.C. Circuit was also troubled by the fact that “contacts with the
    United States that would be insufficient under the Fourteenth Amendment
    might justify personal jurisdiction under the Fifth.” 
    Id.
     But a national
    jurisdiction test would not necessarily relax the due process inquiry; rather,
    it would simply shift its focus. 8 For these reasons, we find the plaintiffs-
    appellants’ position to have merit.
    Waldman v. Palestine Liberation Org., 
    835 F.3d 317
    , 330 (2d Cir. 2016) (quoting Chew v.
    Dietrich, 
    143 F.3d 24
    , 28 n.4 (2d Cir. 1998)) (concluding that “the due process analysis [for
    purposes of the court’s in personam jurisdiction] is basically the same under both the Fifth
    and Fourteenth Amendments”); Schulman v. Inst. for Shipboard Educ., 624 F. App’x 1002,
    1006 (11th Cir. 2015) (applying Daimler to a Rule 4(k)(2) analysis); Carrier Corp. v.
    Outokumpu Oyj, 
    673 F.3d 430
    , 449 (6th Cir. 2012) (holding that the Fifth Amendment
    personal jurisdiction analysis “parallels” the Fourteenth Amendment analysis); cf. Abelesz
    v. OTP Bank, 
    692 F.3d 638
    , 660 (7th Cir. 2012) (finding “no merit” in the argument that
    invoking the Fifth Amendment “relaxes the minimum-contacts inquiry”).
    7
    See Argentina, 
    504 U.S. at
    620 n.2. (noting explicitly that the personal jurisdiction
    question was before the Court only “as an aid in interpreting the direct effect requirement
    of the [Foreign Sovereign Immunities Act]” and that “[w]hether there is a constitutional
    basis for personal jurisdiction over [Argentina] [was] not before the Court as an
    independent question”).
    8
    Just because there are two different tests does not mean one is hard and one is
    easy—it is just a matter of shifting of focus. Analogously, we see this in the general versus
    specific jurisdiction inquiry in the Fourteenth Amendment due process caselaw. For
    example, establishing specific jurisdiction under the Fourteenth Amendment is not
    necessarily easier than establishing general jurisdiction, even though the same contacts that
    suffice to establish specific jurisdiction “would be insufficient,” Livnat, 851 F.3d at 54,
    11
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    B. Rule of Orderliness
    However persuasive we might find plaintiffs-appellants’ position
    persuasive, in deciding whether modern Fourteenth Amendment caselaw
    controls, we confront another panel’s opinion, Patterson v. Aker Solutions,
    Inc., where the Fifth Circuit for the first and only time applied Daimler to
    resolve whether personal jurisdiction could be established under Fed. R.
    Civ. P. 4(k)(2). 826 F.3d at 234. The question we must address, then, is
    whether Patterson’s reliance on the Supreme Court’s decision in Daimler
    compels us to rely on the same.
    It is well-settled in this circuit that the rule of orderliness prevents one
    panel of the court from overturning another panel’s decision, absent an
    intervening change in the law. See Jacobs v. Nat’l Drug Intel. Ctr., 
    548 F.3d 375
    , 378 (5th Cir. 2008). Indeed, the rule of orderliness prevents a
    subsequent panel from declaring precedent void even where the reviewing
    panel conceives error in the examined precedent. United States v. Traxler, 
    764 F.3d 486
    , 489 (5th Cir. 2014). To the extent the parties ask us to disregard or
    modify Fifth Circuit authority, we are not permitted to do so. And it is
    Patterson that NYK Line argues controls this case, leaning on the rule of
    orderliness to convince us of the same.
    Our facts are directly on point with Patterson’s. Like in this case,
    where the collision at issue took place on Japanese territorial waters, the
    complained-of injury in Patterson happened abroad, on a Luxembourg-
    flagged vessel off the coast of Russia. Patterson, 826 F.3d at 233. NYK Line,
    the defendant in our case, has its principal place of business and is
    under a general jurisdiction inquiry. These are two different tests, and the tests’ criteria are
    different because they are supported by different policy considerations. See Daimler, 571
    U.S. at 157 n.10 (Sotomayor, J., concurring in the judgment) (“That is because the two
    forms of jurisdiction [(i.e. specific and general)] address different concerns.”).
    12
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    incorporated outside of the United States; the defendant in Patterson had
    both its place of incorporation and principal place of business in Norway. Id.
    at 234. In both cases, the plaintiffs alleged that personal jurisdiction over the
    foreign defendant was proper under Fed. R. Civ. P. 4(k)(2) and that the
    defendant’s contacts with the United States as a whole sufficed to satisfy the
    Fifth Amendment’s due process requirements. Id. at 233-34.
    To resolve whether personal jurisdiction could be constitutionally
    established over the defendant, Patterson applied the general jurisdiction test.
    See id. at 233 & n.2. 9 Patterson squarely held that “[u]sing [Perkins v. Benguet
    Consol. Mining Co., 
    342 U.S. 437
     (1952),] as the benchmark of the
    ‘exceptional case’ where it is appropriate to exercise general jurisdiction over
    a corporation outside of its principal place of business or place of
    incorporation,” the defendant’s contacts with the United States fell “well
    short of effectively operating its business within the United States.” Id. at
    235. To reach its holding, then, Patterson without a doubt relied on Daimler’s
    general jurisdiction test, which allows for a defendant to be amenable to
    personal jurisdiction in the “exceptional case” where its contacts with a
    forum are so continuous and systematic as to render it essentially at home.
    See Daimler, 571 U.S. at 139 n.19 (referencing Perkins, 
    342 U.S. at 437
    , as the
    example of an “exceptional case”).
    Of course, in resolving a case on point with Patterson, we would be free
    to disregard Patterson’s refences to Daimler and Perkins if these were obiter
    dicta. See Netsphere, Inc. v. Baron, 
    799 F.3d 327
    , 333 (5th Cir. 2015). But they
    are not. To decide whether the defendant’s contacts were sufficient to render
    it essentially at home in the United States, the Patterson court relied explicitly
    9
    In Patterson, whether specific jurisdiction could be properly established was not
    challenged on appeal. See Patterson, 826 at 233. The same is true in this case.
    13
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    on Perkins as a benchmark and distinguished its facts therefrom. Ignoring
    Patterson’s reliance on Perkins would “seriously impair[] the analytical
    foundations of [Patterson’s] holding . . . .” Int’l Truck & Engine Corp. v. Bray,
    
    372 F.3d 717
    , 721 (5th Cir. 2004) (quoting Gochicoa v. Johnson, 
    238 F.3d 278
    ,
    286 n.11 (5th Cir. 2000)). It is also clear that, throughout the Patterson
    opinion, references to Daimler and its general jurisdiction test are
    “explication[s] of the governing rules of law.” 
    Id.
     Such statements are not to
    be considered dicta under Fifth Circuit precedent and are therefore binding
    on this panel. 10 This is so whether we agree with Patterson’s logic or not.
    Traxler, 764 F.3d at 489.
    10
    We recognize that where two previous holdings or lines of precedent conflict,
    the earlier opinion controls and is the binding precedent. Baron, 799 F.3d at 334 (citing Rios
    v. City of Del Rio, Tex., 
    444 F.3d 417
    , 425 n.8 (5th Cir. 2006)). But arguments to the
    contrary notwithstanding, Adams v. Unione Mediterranea Di Sicurta, 
    364 F.3d 646
    , 651-52
    (5th Cir. 2004), does not control here. Patterson and Adams are not in conflict. They both
    turn to national contacts to decide whether personal jurisdiction could be constitutionally
    exercised. Compare Patterson, 826 F.3d at 234, with Adams, 
    364 F.3d at 650-51
    . Patterson
    first applies the law Adams establishes—that Rule 4(k)(2) requires consideration of
    “contacts with the United States as a whole.” Patterson, 826 F.3d at 234 (quoting Adams,
    
    364 F.3d at 650
    ). Like Adams, Patterson next considers whether these contacts were
    “continuous and systematic.” See id.; Adams, 
    364 F.3d at 651-52
    . Then, Patterson alone
    considers whether these contacts “render [the defendant] essentially at home in the United
    States.” Patterson, 826 F.3d at 243 (citing Daimler, 571 U.S. at 139). Adams did not consider
    Daimler’s limitations. Nor could it. As Patterson correctly indicates, Adams predates
    Daimler. See id. at 237 n.7. Patterson’s application of Daimler, however, does not overturn
    or undermine Adams, and there is no true conflict between the two. Any decision to
    disregard Patterson on our part would amount to a finding that Patterson erroneously
    interprets and relies on Daimler to add gloss to Adams’s analysis. This conclusion alone
    does not allow us—a panel of this court—to declare that Patterson is not binding precedent.
    See Jacobs, 
    548 F.3d at
    378 (citing Grabowski v. Jackson Cnty. Pub. Defs. Office, 
    47 F.3d 1386
    ,
    1400 n.4 (5th Cir. 1995) (Smith, J., concurring in part and dissenting in part)). Deciding not
    to follow Patterson would do nothing more than further erode the uniformity of the court’s
    decisions on a question of exceptional importance. Compare Patterson, 826 F.3d at 234
    (applying Daimler in the Rule 4(k)(2) context), with Nagravision SA v. Gotech Int’l Tech.
    Ltd., 
    882 F.3d 494
    , 498 (5th Cir. 2018) (never citing to Daimler or Patterson to support the
    14
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    No. 20-30379
    And so, as we must, we follow Patterson and its application of Daimler
    in addressing whether the district court could constitutionally exercise
    personal jurisdiction over NYK Line. Bound by these constraints, we agree
    with the district court that it could not.
    C. Personal Jurisdiction over NYK Line
    Federal Rule of Civil Procedure 4(k)(2) provides for federal long-arm
    jurisdiction when three requirements are met: (1) A plaintiff’s claims arise
    under federal law; (2) The defendant is not amenable to suit in any state court
    of general jurisdiction; and (3) The plaintiff can show that the exercise of
    jurisdiction comports with due process. See Fed. R. Civ. P. 4(k)(2);
    Patterson, 826 F.3d at 234. The third requirement under Rule 4(k)(2)—the
    due process analysis—contemplates a defendant’s contacts with the entire
    United States, as opposed to the state in which the district court sits. See
    Fed. R. Civ. P. 4(k)(2) advisory committee’s note to 1993 amendment
    (explaining that the Fifth Amendment, the basis of jurisdiction under Rule
    4(k)(2), “requires that any defendant have affiliating contacts with the
    United States sufficient to justify the exercise of personal jurisdiction over
    that party”).
    That the first two requirements of Rule 4(k)(2) are met is undisputed.
    The parties agree that NYK Line is not subject to the jurisdiction of any state
    court and that this case arises under federal law. 11 At issue here is only
    proposition that the requirements of due process were met in a Rule 4(k)(2) analysis, noting
    that this point was undisputed). A faithful observance of the rule of orderliness leaves no
    occasion for us to choose to follow Adams in lieu of Patterson. See Jacobs, 
    548 F.3d at 378
    .
    11
    This case involves claims arising under maritime law, and courts have observed
    repeatedly that maritime law is federal law and that federal law includes admiralty cases for
    the purposes of Rule 4(k)(2). See World Tanker Carriers Corp. v. M/V Ya Mawlaya, 
    99 F.3d 717
    , 723 (5th Cir. 1996).
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    whether an exercise of personal jurisdiction over NYK Line comports with
    due process.
    Under Patterson, due process requires us to ensure that NYK Line’s
    contacts “with the United States . . . [are] so continuous and systematic as to
    render it essentially at home.” Patterson, 826 F.3d at 234 (citing Daimler, 571
    U.S. at 139). “The Supreme Court has found a sufficient basis for the
    exercise of general jurisdiction over a non-resident defendant in only one
    modern case—[Perkins]—and [the defendant’s] contacts with the United
    States [must] come close to the level of contacts there.” Id. at 235.
    NYK Line is incorporated and headquartered in Japan. Therefore, if
    NYK Line is to be subject to an exercise of general personal jurisdiction by a
    federal court, it must be because this is an “exceptional case.” See id. at 234
    & n.5 (quoting Daimler, 571 U.S. at 139 n.19).
    The plaintiffs-appellants assert that, as part of its business, NYK Line
    engages in, inter alia, the following activities: It operates an air-cargo service
    at six U.S. airports and operates twenty-seven shipping terminals in U.S.
    ports. It also regularly calls on at least thirty U.S. ports, and dedicates seven
    of its vessels exclusively for the delivery of automobiles to the United States.
    NYK Line is licensed by the Federal Maritime Commission and is subject to
    its oversight. And shares of NYK Line stock are deposited at the Bank of New
    York Mellon and are available for purchase by U.S. investors. In short, NYK
    Line engages in vast amounts of shipping business in the United States,
    directly and through at least eleven wholly owned U.S. subsidiaries. 12 NYK
    12
    On appeal, NYK Line contests whether its subsidiaries’ contacts are relevant to
    establishing whether the requisite minimum contacts exist in this case. Because we
    conclude that, even considering these contacts, personal jurisdiction could not be properly
    established, we do not reach this issue.
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    Line clarifies that calls made to the United States ports, by vessels owned and
    chartered by it, from 2017-2019 represent between six and eight percent of
    all calls it made at ports worldwide for the same time period. NYK Line also
    highlights that only 24 of its 1,732 employees reside in the United States.
    Using Daimler’s lodestar for the “exceptional case”—as did the court
    in Patterson—the district court correctly concluded that “NYK Line’s
    contacts with the United States are not so continuous and systematic as to
    render [these facts] . . . exceptional.” Unlike in Perkins, the United States
    could hardly be considered “the center of [NYK Line’s] activities” or a
    “surrogate for [NYK Line’s] place of incorporation or head office.” Daimler,
    571 U.S. at 130 n.8. As the district court aptly recognized “[a]ll of NYK
    Line’s high-level decision making takes place in Japan, and port calls made to
    the United States represent just six to eight percent of all port calls made by
    NYK Line worldwide. [Further,] NYK Line’s American employees
    represent less than 1.5 percent of all employees.” Ultimately, NYK Line’s
    contacts with the United States represent a small portion of its contacts
    worldwide. To be sure, NYK Line has considerable contacts with the United
    States. But these are not “so substantial and of such a nature” that NYK Line
    is essentially rendered at home in the United States. Daimler, 571 U.S. at 139
    (quoting Int’l Shoe, 
    326 U.S. at 318
    ); see Patterson, 826 F.3d at 234 n.5. We
    agree with the district court that personal jurisdiction over NYK Line cannot
    be constitutionally established, as we can do no other.
    IV.
    Bound by the rule of orderliness we agree with the district court that
    personal jurisdiction over NYK Line cannot be constitutionally established
    under existing Fifth Circuit precedent. We AFFIRM.
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    No. 20-30379
    Jennifer Walker Elrod, Circuit Judge, joined by Don R. Willett,
    Circuit Judge, specially concurring:
    I wholly concur in the well-reasoned majority opinion. I agree with
    the majority opinion that the case would be decided differently if we were not
    bound by Patterson v. Aker Solutions, Inc., 
    826 F.3d 231
     (5th Cir. 2016). I
    further agree with the majority opinion that Patterson muddled the Fifth
    Amendment due process inquiry by applying Fourteenth Amendment
    caselaw. Our interpretation of Fourteenth Amendment due process is
    shaped by federalism concerns that are irrelevant to the Fifth Amendment
    context. I write separately to urge our court to correct our course and undo
    the unnecessary limitation we have imposed on Federal Rule of Civil
    Procedure 4(k)(2).
    Rule 4(k)(2) was promulgated and approved by Congress in response
    to a gap in federal jurisdiction that the Supreme Court identified in Omni
    Capital International v. Rudolf Wolff & Co., 
    484 U.S. 97
     (1987). 1 In that case,
    the Court declined to decide whether “a federal court could exercise
    personal jurisdiction, consistent with the Fifth Amendment, based on an
    aggregation of the defendant’s contacts with the Nation as a whole, rather
    than on its contacts with the State in which the federal court sits.” 
    Id.
     at 102
    n.5. Although noting that it was “not blind to the consequences” of holding
    that there was no basis to serve the foreign defendants in that case, the
    Supreme Court concluded that the responsibility to fill the jurisdictional gap
    1
    The Amicus Curiae brief submitted by civil procedure professors Arthur R. Miller,
    Helen Hershkoff, John E. Sexton, Adam N. Steinman, and Alan B. Morrison outlines in
    greater detail the relevant history of how Rule 4(k)(2) “was passed in 1993 specifically to
    authorize federal courts, consistent with the Constitution, to exercise personal jurisdiction
    over federal claims that could not otherwise be heard in any state court.”
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    “rests with those who propose the Federal Rules of Civil Procedure and with
    Congress.” 
    Id. at 111
    . Rule 4(k)(2) filled that gap.
    In Patterson, our court unwittingly limited Rule 4(k)(2) by collapsing
    the Fifth Amendment and Fourteenth Amendment due process analyses.
    826 F.3d at 234. In Patterson, the plaintiff did not contest the application of
    Fourteenth Amendment caselaw to explicate the Fifth Amendment
    standard, and thus the panel did not have the benefit of briefing about the
    important distinctions between Fifth and Fourteenth Amendment due
    process limitations on the exercise of personal jurisdiction.
    However, there are important reasons to apply a jurisdictional
    framework that distinguishes between Fifth Amendment and Fourteenth
    Amendment due process standards.
    To start, the federalism concerns that animate the Supreme Court’s
    jurisprudence on the jurisdictional limitations of the Fourteenth
    Amendment’s Due Process Clause are irrelevant in the Fifth Amendment
    context. Recently in Ford Motor Co. v. Montana Eighth Judicial District, the
    Supreme Court emphasized that “principles of ‘interstate federalism’” are
    central to its analysis of Fourteenth Amendment due process limitations on
    personal jurisdiction. 
    141 S. Ct. 1017
    , 1030 (2021) (quoting World-Wide
    Volkswagen Corp. v. Woodson, 
    444 U.S. 286
    , 293 (1980)). These federalism
    concerns are irrelevant in the Fifth Amendment context where federal law
    applies uniformly. All that matters is the sovereign authority of the United
    States itself. Simply put, it does not make sense to consider the sovereignty
    of individual states the exact same way we consider the sovereignty of the
    United States within the international community.
    Recognizing this conceptual distinction, the Supreme Court has
    explicitly left “open the question whether the Fifth Amendment imposes the
    same restrictions on the exercise of personal jurisdiction by a federal court”
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    No. 20-30382 c/w
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    as the Fourteenth Amendment does on a state court. Bristol-Myers Squibb
    Co. v. Superior Ct., 
    137 S. Ct. 1773
    , 1784 (2017).
    Furthermore, we must be precise in expounding on the constitutional
    principles that underlie our exercise of personal jurisdiction or else we risk
    imposing restraints on federal courts’ exercise of personal jurisdiction (and,
    relatedly, Congress’s ability to authorize jurisdiction by statute) beyond what
    the Constitution requires and what Rule 4(k)(2) contemplates.
    Indeed, this case illustrates how applying the wrong standard limits
    Rule 4(k)(2) precisely where it is intended to apply. The defendant here,
    NYK Line, regularly makes calls to at least thirty United States ports,
    operates twenty-seven shipping terminals in United States ports, and
    operates an air-cargo service at six United States airports. Shares of NYK
    Line stock are deposited at the Bank of New York Mellon and may be
    purchased by United States investors. NYK Line’s consolidated revenue
    from its North American entities in the fiscal year ending in March 2019 was
    $1.47 billion. 2 Moreover, and importantly, as a consequence of its extensive
    business activity with the United States, NYK Line frequently litigates in
    United States courts—bringing over thirty lawsuits in federal district courts
    since 2010. Our decision today, compelled by Patterson, determines that a
    global corporation with extensive contacts with the United States cannot be
    haled into federal court for federal claims arising out of a maritime collision
    that killed seven United States Navy sailors.
    The Supreme Court has not yet definitively outlined what constraints
    the Fifth Amendment’s Due Process Clause imposes on federal courts’
    2
    The district court denied jurisdictional discovery in this case, and thus plaintiffs
    made their prima facie case based primarily on publicly available information, some of which
    did not disaggregate NYK Line’s United States data from its North America data.
    20
    No. 20-30382 c/w
    No. 20-30379
    exercise of personal jurisdiction. For now, we can only ensure that our
    precedent does not add to the doctrinal confusion, and I contend that
    Patterson does exactly that. This case presents a good vehicle for our en banc
    court to correct our course on Rule 4(k)(2) and apply Fifth Amendment due
    process precedent to cases where personal jurisdiction depends on satisfying
    Fifth Amendment due process requirements.
    21