Douglass v. Nippon Yusen Kabushiki ( 2022 )

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 16, 2022
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
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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 Richman, Chief Judge, and Jones, Smith, Stewart,
Dennis, Elrod, Southwick, Haynes, Graves, Higginson,
Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and
Wilson, Circuit Judges.
Edith H. Jones, Circuit Judge, joined by Richman, Chief Judge, and
Smith, Stewart, Dennis, Southwick, Haynes, Costa, Ho,
Duncan, Engelhardt, and Wilson, Circuit Judges:*
The issue before the en banc court is whether a federal court may
exercise personal jurisdiction over a foreign corporation for federal claims,
which arise from injuries and deaths of American naval personnel in a
collision in foreign waters. To succeed, the plaintiffs must show either that
the foreign corporation is “at home” in the United States or that their claims
arise from or relate to the foreign corporation’s business activities in the
*
Judge Haynes concurs in the judgment only. Senior Judge King was a member of
the panel but chose not to participate in en banc rehearing.
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United States. The district court rejected the first alternative based on
substantial precedent; the plaintiffs foreswore, as they had to, reliance on the
second alternative. We AFFIRM.
I. Background
Nippon Yusen Kabushiki Kaisha (“NYK”), incorporated and
headquartered in Japan, is a major global logistics company that transports
cargo by air and sea. For its seaside operations, NYK owns or charters a
formidable fleet that includes bulk carriers, container ships (of all sizes), car
transporters, tankers, cruise ships, shuttle tankers, drillships, and LNG
carriers, among other vessels.1 NYK charters more than half of the ships it
uses to transport cargo.2 The vessels call port throughout the world.
Between 2017 and 2019, about seven percent of the worldwide port calls
made by NYK owned or chartered vessels were in the United States, totaling
about 1500 calls annually.
A natural consequence of NYK’s handling shipments bound for the
United States is that it occasionally litigates in American courts. Since 2010,
for example, NYK has filed around thirty lawsuits in federal courts, most
involving claims seeking freight charges owed under bills of lading.3 And
every so often, NYK and its ships are sued in American courts, typically for
1
NYK Group Fleet, NYK LINE FACT BOOK I 2019, at 8 (Apr. 26, 2019),
https://www.nyk.com/english/ir/library/fact/first/2019/__icsFiles/afieldfile/2019/10/
28/190426FB1E_1.pdf (last visited Oct. 23, 2021).
2
Id.
3
See, e.g., Complaint at 3-5, Nippon Yusen Kabushiki Kaisha v. GSF Nut Co., LLC,
No. 2:2017-cv-5614 (C.D. Cal. July 28, 2017), ECF No. 1; Complaint at 5-8, Nippon Yusen
Kabushiki Kaisha v. Multi-Trans Shipping Agency, Inc., No. 2:2016-cv-9523 (C.D. Cal. Dec.
23, 2016), ECF No. 1; Complaint at 3-5, Nippon Yusen Kabushiki Kaisha v. Wesmex Inc., No.
8:2014-cv-1910 (C.D. Cal. Dec. 3, 2014), ECF No. 1.
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cargo damaged en route to the United States or for injuries that occurred
during cargo operations in the United States.4
Among NYK’s approximately 1700 employees, about 25 are seconded
to NYK subsidiaries in the United States. Overall, NYK’s business in the
United States and North America makes up less than ten percent of its annual
revenue.
On June 17, 2017, the ACX Crystal, a 730-foot container ship
chartered by NYK,5 collided with the destroyer USS Fitzgerald in Japanese
territorial waters.6 As the ACX Crystal’s bow ripped through the Fitzgerald’s
4
See, e.g., Complaint at 1-5, Epperson v. NYK Line, No. 4:2019-cv-5948 (N.D. Cal.
Sept. 24, 2019), ECF No. 1 (negligence claim by American harbor pilot injured in United
States waters by allegedly faulty Jacob’s ladder); Complaint at 3-5, Neal v. NYK Line, No.
4:2013-cv-507 (N.D. Cal. Feb. 5, 2013), ECF No. 1 (negligence claim by longshoreman
involved in unloading NYK vessel in the United States); Complaint at 2-3, Starr Indem. &
Liab. Co. v. Yamato Transp. U.S.A., Inc., No. 2:2016-cv-4616 (C.D. Cal. June 24, 2016),
ECF No. 1 (damaged cargo); Complaint at 2-4, Great Am. Ins. Co. of N.Y. v. Hanjin
Shipping, No. 2:2015-cv-8798 (C.D. Cal. Nov. 11, 2015), ECF No. 1 (same); Complaint at
2-4, Beachside Produce, LLC v. Nippon Yusen Kabushiki Kaisha, No. 2:2015-cv-4951 (C.D.
Cal. June 30, 2015), ECF No. 1 (same).
5
NYK had a time charter for the ACX Crystal. A time charterer obtains use of a
ship in only a limited sense: The vessel’s owner “provides the vessel’s master and crew
and (depending on the circumstances) pays the normal operating expenses, while the
charterer obtains the commercial benefit of having its cargo carried.” David W.
Robertson, Steven F. Friedell, & Michael F. Sturley, Admiralty
and Maritime Law in the United States 325 (4th ed. 2020). In other words,
time charters “are more like taxis or limousine services or hotels than they are like typical
leases.” Id. Because the time charterer typically has little or no control over the vessel’s
navigation, it almost never bears liability for a collision stemming from navigational error.
See Moore v. Phillips Petroleum Co., 912 F.2d 789, 792 (5th Cir. 1990) (“The vessel owner
remains responsible for . . . navigational errors by the pilot and negligence by the
crew . . . .”) (citation omitted). Thus, even if the plaintiffs could establish personal
jurisdiction over NYK, their claims face other substantial hurdles.
6
The after-accident reports issued by the National Transportation Safety Board
and the Japanese Transport Safety Board largely fault the United States Navy for the
collision—neither report places any fault on NYK. See National Transportation Safety
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hull at midship, several compartments on the Fitzgerald flooded, killing seven
American sailors and injuring dozens of others. At the time of the collision,
the ACX Crystal, then a Philippine-flagged vessel, was on an intra-Asia trade
route. It has never called port in the United States.
Personal representatives of the seven sailors killed sued NYK in
federal court, asserting wrongful death and survival claims under the Death
on the High Seas Act, 46 U.S.C. § 30301 et seq. The injured sailors and their
family members sued NYK separately, asserting negligence and loss of
consortium claims.7 In both cases, the plaintiffs alleged that NYK, a foreign
corporation, is amenable to federal court jurisdiction under Fed. R. Civ.
P. 4(k)(2) based on its “substantial, systematic and continuous contacts with
the United States as a whole.” Neither complaint alleges that the injuries at
issue arose out of or relate to NYK’s contacts with the United States.
NYK moved to dismiss the suits for lack of personal jurisdiction under
Fed. R. Civ. P. 12(b)(2). The district court obliged, issuing identical
opinions. Relying on Patterson v. Aker Solutions Inc., 826 F.3d 231 (5th Cir.
2016), the district court held that the Fifth Amendment due process test for
personal jurisdiction governs this admiralty dispute and mirrors the
Fourteenth Amendment test. Applying the Fourteenth Amendment
standard, the district court concluded that NYK did not have sufficient
Board, Marine Accident Report: Collision Between US Navy Destroyer Fitzgerald and
Philippine-Fleg Container Ship ACX Crystal Sagami Nada Bay off Izu Peninsula, Honshu
Island, Japan July 17, 2017 (2020), https://www.ntsb.gov/investigations-
/AccidentReports/Reports/MAR 2002.pdf (last visited Oct. 23, 2021); Japan Transport
Safety Board, Marine Accident Investigation Report (Aug. 29, 2019), https://www.
mlit.go.jp/jtsb/eng-mar_report/2019 /2017tk0009e.pdf (last visited Oct. 23, 2021).
7
The injured sailors and the personal representatives of the sailors killed also sued
the ACX Crystal’s owner, Olympic Steamship Company, and its bareboat charterer, Vega
Carriers Corporation, both Panamanian corporations, in Japan for the same injuries at issue
in this lawsuit. See Appellee’s Rule 28(j) Letter dated Jan. 29, 2021.
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contacts with the United States to justify the court’s exercising personal
jurisdiction over it.
On appeal, the cases were consolidated. The panel affirmed the
judgment but suggested it would have reached a different result if not bound
by Patterson. Concurring, Judges Elrod and Willett opined that “our
interpretation of Fourteenth Amendment due process is shaped by
federalism concerns that are irrelevant to the Fifth Amendment context,”
and Patterson imposed an “unnecessary limitation” on Rule 4(k)(2). In their
view, Patterson “unwittingly limited Rule 4(k)(2) by collapsing the Fifth
Amendment and Fourteenth Amendment due process analyses.”
This court granted plaintiffs’ petition for rehearing en banc to
consider whether NYK is subject to jurisdiction in these cases.
II. Standard of Review
This court’s review of a Rule 12(b)(2) dismissal for lack of personal
jurisdiction is de novo. Patterson, 826 F.3d at 233 (citing Revell v. Lidov,
317 F.3d 467, 469 (5th Cir. 2002)).
III. Discussion
The Fifth Amendment due process standard governs the personal
jurisdiction inquiry in this lawsuit raising federal claims in federal court. The
en banc dispute centers on whether the Fifth Amendment standard mirrors
the “minimum contacts” and “fair play and substantial justice” principles
underlying the Fourteenth Amendment personal jurisdiction inquiry. Two
issues, considered in turn, logically precede that debate. First, we reject the
plaintiffs’ passing argument that NYK, as a foreign corporation, lacks Fifth
Amendment due process rights altogether and therefore cannot object to a
federal court’s assertion of personal jurisdiction over it. Second, we expose
the faulty premise underlying the plaintiffs’ contention that applying
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Fourteenth Amendment personal jurisdiction standards in Fifth Amendment
cases would render Rule 4(k)(2) a nullity.8
A. Foreign corporations litigating in federal court may challenge
the court’s personal jurisdiction under the Fifth Amendment Due
Process Clause.
The plaintiffs oddly contend that NYK, as a foreign corporation, has
no Fifth Amendment due process rights at all. In support, they cite cases
addressing whether constitutional rights extend to foreign persons acting
abroad. See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct.
2082, 2088 (2020) (holding that foreign subsidiaries of United States
companies do not have First Amendment rights); United States v. Verdugo-
8
This majority opinion addresses the exact arguments raised by the plaintiffs
consistently throughout the litigation. But for one point, we will not address the dissents’
wholly novel arguments, which pointedly divorce themselves from the parties’ theory of
the case. Post at 47 n.5 (“I disagree with both approaches because both start not with the
Fifth Amendment but with inapplicable Fourteenth Amendment case law.”). By standing
up for the law as it has been accepted unanimously among the circuit courts, we decline to
consider adversarially untested propositions. Moreover, the principal dissent’s criticism
that NYK bore some burden—to anticipate and analyze personal jurisdiction without any
reference to well-settled case law—is simply wrong. At the very least, it is the plaintiffs’
burden to establish the court’s jurisdiction in response to a Rule 12(b)(2) personal
jurisdiction challenge by a defendant. Johnson v. Multidata Sys. Int’l Corp., 523 F.3d 602,
609 (5th Cir. 2008).
If we were to address the merits of the principal dissent’s theory, however, we
would note its repeated insistence that, consistent with the Fifth Amendment, Congress
could pass a law to subject foreign defendants to American federal court jurisdiction for any
injuries inflicted on American citizens or claims arising abroad. Whether this is correct or
not, we do not assay. Moreover, we cannot analyze this theory because the dissent posits
no rule or limits flowing from the Fifth Amendment. And finally, no court has adopted the
dissent’s view that Rule 4(k)(2) alone suffices to extend substantive personal jurisdiction
to the constitutional limit, and the Rule’s language alone suggests otherwise. Fed. R.
Civ. P. 4(k)(2) (“[S]erving a summons . . . establishes personal jurisdiction over a
defendant if . . . exercising jurisdiction is consistent with the United States Constitution
and laws.”).
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Urquidez, 494 U.S. 259, 274-75, 110 S. Ct. 1056, 1065-66 (1990) (rejecting
contention that DEA’s search of a residence in Mexico violated non-citizen’s
Fourth Amendment rights).9 Here, however, NYK invokes its constitutional
due process rights in the course of litigation in the United States. Therefore,
any constitutional violation can occur only in the United States. Cf. Verdugo-
Urquidez, 494 U.S. at 264, 110 S. Ct. at 1060 (differentiating Fifth and
Fourth Amendment violations and concluding that unlike an “unreasonable
search and seizure,” a violation of the privilege against self-incrimination
“occurs only at trial”). The cases the plaintiffs rely on are thus inapposite.
Further, the plaintiffs’ argument is irreconcilable with the countless
cases where courts, including the Supreme Court, have afforded foreign
corporations due-process-based personal-jurisdiction protections under the
Fourteenth Amendment. See, e.g., Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 131 S. Ct. 2846 (2011); J. McIntyre Mach., Ltd. v.
Nicastro, 564 U.S. 873, 131 S. Ct. 2780 (2011); Asahi Metal Indus. Co. v.
Superior Ct. of Cal., 480 U.S. 102, 107 S. Ct. 1026 (1987). Thus, NYK can
object to a federal court’s unwarranted exercise of personal jurisdiction to
the same extent as a United States citizen.
B. Rule 4(k) is a procedural rule governing the territorial limits of
service.
Federal Rule of Civil Procedure 4(k)(2) states that, “[f]or a claim that
arises under federal law, serving a summons . . . establishes personal
jurisdiction over a defendant if: (A) the defendant is not subject to
9
The plaintiffs also rely on Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959,
1981-83 (2020), to support their claim. That case, however, is inapt here because it
addresses whether non-naturalized foreigners have due process rights to judicial review of
immigration decisions where Congress did not statutorily provide such review. Id.8
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jurisdiction in any state’s courts of general jurisdiction; and (B) exercising
jurisdiction is consistent with the United States Constitution and laws.”
Throughout their briefing, the plaintiffs present Rule 4(k)(2) as the
substantive source of personal jurisdiction over NYK and contend that
adopting the Fourteenth Amendment standard would render Rule 4(k)(2) a
nullity. That rule-centric view obscures the purely constitutional nature of
the personal jurisdiction question at issue here. Rule 4(k)(2) is a procedural
rule governing the territorial limits of service. The text is expressly
subservient to the constitutional limits of due process. The rule does not—
and cannot—control the constitutional inquiry whether due process
prohibits a court from exercising personal jurisdiction over the defendant in
a given lawsuit.
Today, personal jurisdiction is typically exercised through a summons
to appear in court on pain of default. The valid exercise of jurisdiction
through a summons requires (1) notice of the command and (2) amenability
to the command. The notice requirement is procedural, and the amenability
requirement is substantive. Historically, those requirements were
inextricably intertwined because federal courts had jurisdiction over only
defendants that voluntarily appeared or were personally served in the
district.10 At the advent of the Federal Rules of Civil Procedure, the
10
Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 79 (“But no person shall be arrested
in one district for trial in another, in any civil action before a circuit or district court. . . .
And no civil suit shall be brought before either of said courts against an inhabitant of the
United States, by any original process in any other district than that whereof he is an
inhabitant, or in which he shall be found at the time of serving the writ . . . .”).
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procedural limitations on proper notice were basically the same.11 See Fed.
R. Civ. P. 4(f) (1938).
In 1945, however, the Supreme Court made clear that due process
permitted personal jurisdiction over a nonresident defendant as long as the
defendant had “certain minimum contacts with [the forum] such that the
maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316,
66 S. Ct. 154, 158 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463,
61 S. Ct. 339, 343 (1940)). After International Shoe, states began authorizing
out-of-state service.12 Rule 4 was amended in 1963 to allow service outside
the territorial limits of the state when authorized by state law.13 As the
territorial scope of service expanded, the due process limitations on personal
jurisdiction assumed greater independent significance. See, e.g., Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 105 S. Ct. 2174 (1985); Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868 (1984);
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559(1980); Kulko v. Superior Ct. of Cal., 436 U.S. 84, 98 S. Ct. 1690 (1978).
Then came the 1993 Amendments. Rule 4 was completely rewritten
and what was Rule 4(f) became Rule 4(k). Relevant here, the new
Rule 4(k)(2), adopted in response to the Supreme Court’s decision in Omni
11
Fed. R. Civ. P. 4(f) advisory committee’s note (1937) (“This Rule enlarges
to some extent the present rule as to where service may be made. It does not, however,
enlarge the jurisdiction of the district courts.”).
12
Douglas D. McFarland, Dictum Run Wild: How Long-Arm Statutes Extended to the
Limits of Due Process, 84 B.U. L. Rev. 491, 492-97 (2004) (discussing the rise of state long-
arm statutes after International Shoe).
13
Fed. R. Civ. P. 4(f) advisory committee’s note (1963) (“The first sentence is
amended to assure the effectiveness of service outside the territorial limits of the State in
all the cases in which any of the rules authorize service beyond those boundaries.”).
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Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 108 S. Ct. 404 (1987),
assumed its current wording, although Rule 4(k) retained the old Rule 4(f)’s
caption, “Territorial Limits of Effective Service.” Fed. R. Civ. P. 4(k).
Notwithstanding the amendments, Rule 4(k) is still just a procedural
rule about issuing summonses. By law, the Federal Rules of Civil Procedure
cannot “abridge, enlarge or modify any substantive right,”
28 U.S.C. § 2072(b), and a rule expanding the scope of a court’s personal
jurisdiction would modify a substantive right no less than a rule expanding
subject matter jurisdiction. Further, the Advisory Committee that
recommended the 1993 Amendments recognized that “[t]here remain
constitutional limitations on the exercise of territorial jurisdiction by federal
courts over persons outside the United States.” Fed. R. Civ. P. 4(k)(2)
advisory committee’s note to 1993 amendment. No doubt service of a
summons under Rule 4(k)(2) establishes personal jurisdiction when
procedurally authorized by the Federal Rules and consistent with the
Constitution. But as the rule expresses, the efficacy of service remains
subject to the constitutional question whether a defendant is amenable to
jurisdiction. The plaintiffs’ consequentialist argument, that adopting a
certain due process test for personal jurisdiction under the Fifth Amendment
would render Rule 4(k)(2) a nullity, is textually and logically unsound.
C. The Fifth Amendment due process test for personal
jurisdiction mirrors the Fourteenth Amendment test.
This brings us to the heart of the dispute: Determining what standard
governs personal jurisdiction over defendants sued on federal claims in
federal court under the Fifth Amendment Due Process Clause.
NYK contends that the Fifth Amendment due process test for
personal jurisdiction parallels the Fourteenth Amendment test, except that
the Fifth Amendment test looks at contacts with the United States as a whole
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rather than any one state. On this basis, NYK continues, the tried and true
dichotomy between specific and general jurisdiction applies under the Fifth
Amendment. Because the plaintiffs do not allege that their claims arise out
of or relate to NYK’s contacts with the United States, NYK is amenable to
the district court’s jurisdiction only under a general jurisdiction theory,
which means NYK is amenable to jurisdiction if and only if its contacts are
“so continuous and systematic as to render it essentially at home in the”
relevant forum, the United States. Daimler AG v. Bauman, 571 U.S. 117, 139,
134 S. Ct. 746, 761 (2014) (quoting Goodyear, 564 U.S. at 920, 131 S. Ct. at
2851) (cleaned up).
The plaintiffs and their amici14 key off their interpretation of
Rule 4(k)(2) and contend that the Fifth and Fourteenth Amendment due
process requirements are critically different. They note first that the
Supreme Court has expounded on the Fourteenth Amendment due process
requirements for personal jurisdiction but has consistently reserved the Fifth
Amendment question. Additionally, while principles of interstate federalism
and individual liberty animate the Supreme Court’s Fourteenth Amendment
personal jurisdiction jurisprudence, the Fifth Amendment focuses on the
United States’ sovereign limits rather than the states’ reciprocal sovereign
limits, rendering federalism immaterial. Because the Fifth Amendment is
concerned with guaranteeing fairness for defendants rather than
circumscribing state court jurisdiction, a distinct and more permissive
standard is warranted. What is more, importing the Fourteenth Amendment
standards into the Fifth Amendment analysis would render Rule 4(k)(2)
14
Professors Helen Hershkoff, Arthur R. Miller, Alan B. Morrison, John E. Sexton,
and Adam N. Steinman filed an amicus curiae brief in this case supporting the plaintiffs.
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essentially nugatory. Finally, at a minimum, admiralty’s unique nature and
history necessitate a distinct standard.
In the plaintiffs’ view, the Fifth Amendment due process inquiry is
simply whether a defendant, sued on a federal claim, was doing enough
systematic and continuous business in the United States that it had fair notice
it could be subjected to suit in federal courts. Their novel theory eschews the
traditional distinction between general and specific personal jurisdiction and,
more specifically, advocates against applying recent Supreme Court general
jurisdiction cases like Daimler in favor of a barebones “continuous and
systematic” standard articulated in International Shoe and allegedly applied
heretofore in this court.
In Fourteenth Amendment vernacular, the plaintiffs’ proposed
personal jurisdiction test appears to dress a general jurisdiction theory in
specific jurisdiction garb. But even if they argued that their claims must in
some way be related to the foreign defendant’s continuous and systematic
contacts with the United States, the “related” prong of their proposed Fifth
Amendment personal jurisdiction test is toothless: If personal injury and
wrongful death claims caused in foreign waters by a foreign logistics
company’s chartered, foreign-registered vessel bound for a foreign country
are sufficiently related to that corporation’s shipping-related contacts with
the United States, then what isn’t? The plaintiffs’ conception of “related”
goes far beyond the Fourteenth Amendment’s “arise out of or relate to”
standard.
We reject the plaintiffs’ theory and hold that the Fifth Amendment
due process test for personal jurisdiction requires the same “minimum
contacts” with the United States as the Fourteenth Amendment requires
with a state. Both Due Process Clauses use the same language and serve the
same purpose, protecting individual liberty by guaranteeing limits on
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personal jurisdiction. Every court that has considered this point agrees that
the standards mirror each other. The plaintiffs’ rule-centric argument, that
importing the Fourteenth Amendment standards into the Fifth Amendment
context renders Rule 4(k)(2) a nullity, is unpersuasive and wrong. Finally,
the plaintiffs misinterpret the law underlying their argument about admiralty
law’s unique nature and history regarding jurisdiction over foreign
defendants.
1. The Due Process Clauses.
Limits on the scope of a court’s personal jurisdiction “flow[] not from
Art. III, but from the Due Process Clause.” Ins. Corp. of Ir. v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 702, 102 S. Ct. 2099, 2104 (1982). Both
Due Process Clauses protect persons from the deprivation of “life, liberty, or
property, without due process of law.” U.S. Const. amend. V; amend.
XIV, § 1. The clauses differ only in that the Fifth Amendment Due Process
Clause limits the federal government, while the Fourteenth Amendment Due
Process Clause limits the states. Based on that dissimilarity, the plaintiffs
contend that the Fourteenth Amendment Due Process Clause vindicates
federalism principles that are irrelevant under the Fifth Amendment. No
doubt federalism is immaterial under the Fifth Amendment, but the
plaintiffs’ myopic emphasis on federalism misses the very core of due
process.
“Due process of law” traces its origins to the Great Charter of
individual liberty, Magna Carta.15 Individual liberty is what the Supreme
15
Magna Carta guaranteed that “[n]o free man shall be taken, imprisoned,
disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or
prosecute him, except by the lawful judgment of his peers and by the law of the land.” A.E.
Dick Howard, Magna Carta Text and Commentary 45 (rev. ed. 1998). At
the time of the Fifth Amendment’s ratification, people universally understood “due
process of law” to convey “the same meaning as the words ‘by the law of the land’” in
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Court emphasizes as the foundation of the personal jurisdiction requirement.
That requirement “represents a restriction on judicial power not as a matter
of sovereignty, but as a matter of individual liberty.” Ins. Corp. of Ir.,
456 U.S. at 702, 102 S. Ct. at 2104; see also Nicastro, 564 U.S. at 899-900,
131 S. Ct. at 2798 (Ginsburg, J., dissenting) (citing Ins. Corp. of Ir., 456 U.S.
at 703 n.10, 102 S. Ct. at 2104 n.10); Burger King, 471 U.S. at 471-72,
105 S. Ct. at 2181-82. International Shoe’s minimum contacts test secures
defendants’ individual liberty by protecting them against (1) the concrete
burden of “litigating in a distant or inconvenient forum,” World-Wide
Volkswagen, 444 U.S. at 292, 100 S. Ct. at 564, and (2) the abstract burden of
“submitting to the coercive power of a [forum] that may have little legitimate
interest in the claims in question.” Bristol-Myers Squibb Co. v. Superior Ct. of
Cal., 137 S. Ct. 1773, 1781 (2017). A forum’s “interest” in the litigation
depends on, inter alia, the relationship among the defendant, the forum, and
the litigation.
To be sure, federalism concerns are central to the Supreme Court’s
interpretation of the Fourteenth Amendment Due Process Clause.16 But
“federalism” is a proxy for the abstract burden of a defendant’s submitting
to the coercive power of a forum with little interest in the dispute. In
Insurance Corp. of Ireland, the Supreme Court explained that the “restriction
on state sovereign power described in World-Wide Volkswagen,” i.e., the
“federalism” aspect of Fourteenth Amendment due process, “must be seen
as ultimately a function of the individual liberty interest preserved by the Due
Magna Carta. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272,
276 (1856).
16
See, e.g. Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 592 U.S. ---, 141 S. Ct. 1017,
1025, 1030 (2021); Bristol-Myers Squibb, 137 S. Ct. at 1780-81, 1788; World-Wide
Volkswagen, 444 U.S. at 293-94, 100 S. Ct. at 565-66.
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Process Clause.” 456 U.S. at 702 n.10, 102 S. Ct. at 2104 n.10. Indeed, “if
the federalism concept operated as an independent restriction on the
sovereign power of the court, it would not be possible to waive the personal
jurisdiction requirement”—an individual’s “actions cannot change the
powers of sovereignty, although the individual can subject himself to powers
from which he may otherwise be protected.” Id. In short, “federalism” is
not the quintessence of the personal jurisdiction analysis under the
Fourteenth Amendment Due Process Clause, it is a derivative concern.
Further, an analogous “federalism” dynamic may arise in the Fifth
Amendment context under the rubric of “international comity.”17 Just as a
state court’s exercising coercive power over an out-of-state defendant
offends Fourteenth Amendment due process when the relationship among
the defendant, the state, and the litigation is insufficient, so, too, may a
federal court’s exercising coercive power over a foreign non-resident
defendant offend Fifth Amendment due process when the relationship
among the defendant, the United States, and the litigation is insufficient.
Either situation potentially infringes individual liberty, though the impact of
foreign relations and national security surely can affect the United States’
“sovereign reach” in ways irrelevant to this case.
17
Consider, for instance, the international comity concerns implicated in this case.
Under the plaintiffs’ theory, virtually every foreign corporation with more than a nominal
amount of business in the United States can be haled into federal court for any federal claim.
Such a reading of the Due Process Clause would not “give[] a degree of predictability to
the legal system” that would allow corporations to reasonably “structure their primary
conduct with some minimum assurance as to where that conduct will and will not render
them liable to suit.” World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567. Even if
NYK were ultimately held amenable to federal court jurisdiction here, the same
international comity concerns may warrant forum non conveniens dismissal—especially
because concurrent litigation is pending in Japanese Courts.
16
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In any event, the plaintiffs’ focus on “federalism” concerns in the
Supreme Court’s Fourteenth Amendment jurisprudence is beside the point.
Federalism concerns are germane to specific jurisdiction—not general
jurisdiction, which is the only theory the plaintiffs advanced in the district
court.18 “Federalism” cannot matter for general jurisdiction. If a corporate
defendant is “at home” in the forum, by incorporation, principal place of
business, or otherwise, that forum has “complete and irresistible”
jurisdiction over it. J. Story, Commentaries on the Conflict
of Laws 911-12, (3d ed. 1846); see also Daimler, 571 U.S. at 127, 134 S. Ct.
at 754; Goodyear, 564 U.S. at 919, 131 S. Ct. at 2851; Helicopteros, 466 U.S. at414 n.9, 104 S. Ct. at 1872 n.9. Plaintiffs’ proffered “federalism” differences
between the Fifth and Fourteenth Amendments are superfluous.
Because the Due Process Clauses use the same language and
guarantee individual liberty in the same way, it makes sense that the
standards developed in the Fourteenth Amendment context must govern
under the Fifth Amendment.
2. Courts all apply the Fourteenth Amendment “minimum
contacts” standard in Fifth Amendment cases.
This court and six other circuits apply Fourteenth Amendment due
process analysis to determine personal jurisdiction in cases governed by the
Fifth Amendment.
18
Compare Ford Motor Co., 141 S. Ct. at 1025, 1030 (raising “federalism” concerns
in specific personal jurisdiction case) and Bristol-Myers Squibb, 137 S. Ct. at 1780-81, 1788
(same) and World-Wide Volkswagen, 444 U.S. at 293-94, 100 S. Ct. at 565-66 (same) with
Daimler, 571 U.S. 117, 134 S. Ct. 746 (failing to raise “federalism” concerns in general
personal jurisdiction case); Goodyear, 564 U.S. 915, 131 S. Ct. 2846 (same); Helicopteros,
466 U.S. 407, 104 S. Ct. 1868 (1984) (same). But see Daimler, 571 U.S. at 157, 134 S. Ct. at
772 (Sotomayor, J., concurring in the judgment).
17
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Every Fifth Circuit decision addressing the scope of contacts required
for personal jurisdiction under the Fifth Amendment has applied the
then-existing Fourteenth Amendment framework.19 Relatedly, this court’s
Rule 4(k)(2) cases consistently recognize and invoke the general-specific
jurisdiction dichotomy, which the plaintiffs dismiss as irrelevant to the Fifth
Amendment.20 Paradigmatically, in Patterson, the court considered whether
general jurisdiction existed over a foreign defendant on a federal claim based
on its contacts with the United States as a whole. Patterson, 826 F.3d at 234.
In finding insufficient contacts with the United States to support general
jurisdiction, the court squarely relied on a then-recent Supreme Court
decision founded on the Fourteenth Amendment. Id. (citing Daimler, 571
U.S. 139, 134 S. Ct. at 761).
In practice, this court has found that a foreign corporation’s contacts
satisfy Fifth Amendment due process only in cases where the parties’ dispute
arose out of or related to those United States contacts, that is, where specific
jurisdiction existed.21 The Fifth Circuit has never found that a foreign
19
See, e.g., Patterson, 826 F.3d at 234 (relying on Fourteenth Amendment cases);
Quick Techs., Inc. v. Sage Grp. PLC, 313 F.3d 338, 343-45 (5th Cir. 2002) (same); Adams v.
Unione Mediterranea di Sicurta, 364 F.3d 646, 651-52 (5th Cir. 2004) (same).
20
See, e.g., Stutzman v. Rainbow Yacht Adventures Ltd., 265 F. App’x 402 (5th Cir.
2008) (per curiam); Quick Techs., 313 F.3d at 343-45; Submersible Sys., Inc. v. Perforadora
Cent., S.A. de C.V., 249 F.3d 413, 420 (5th Cir. 2001).
21
See Nagravision SA v. Gotech Int’l Tech. Ltd., 882 F.3d 494 (5th Cir. 2018)
(approving personal jurisdiction over foreign defendants where plaintiffs alleged that
defendants “use a network of servers located in various cities across . . . the United States
to engage in the unauthorized distribution of Nagravision’s control words in violation of
the DMCA and FCA”); Adams, 364 F.3d at 651-652 (finding sufficient contacts for
personal jurisdiction where foreign defendant insured steel shipment to United States and
“enabled prosecution of claims in the United States by providing claims agents and
surveyors” in United States).
18
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corporation’s contacts with the United States alone supported general
jurisdiction over unrelated lawsuits.22
The plaintiffs’ reliance on Adams v. Unione Mediterranea di Scurta,
364 F.3d 646 (5th Cir. 2004) is misplaced. This court determined that the
defendant, an Italian insurer, had “continuous and systematic contacts with
the United States as a whole.” Id. at 651-52. But the claims stemmed from a
cargo insurance policy covering a shipment to the United States. Id. at 648.
Adams represents a straightforward application of International Shoe’s
specific jurisdiction principles.23 See Int’l Shoe, 326 U.S. at 317, 66 S. Ct. at
22
See, e.g., De Leon v. Shih Wei Navigation Co., 269 F. App’x 487, 490-91 (5th Cir.
2008) (per curiam) (rejecting general personal jurisdiction theory); Stutzman,
265 F. App’x at 403-04 (same); Submersible Sys., 249 F.3d at 420-21.
Indeed, our research found no case accepting a general personal jurisdiction theory
under the Fifth Amendment like what plaintiffs propose here. See, e.g., Doe v. Buratai,
792 F. App’x 6, 9 (D.C. Cir. 2019) (per curiam); Morris ex rel. Or. Cascade Corp. v. Harley,
720 F. App’x 326, 329 (9th Cir. 2017) (per curiam); Wolf v. Celebrity Cruises, Inc.,
683 F. App’x 786, 793 (11th Cir. 2017) (per curiam); Schulman v. Inst. for Shipboard Educ.,
624 F. App’x 1002, 1006 (11th Cir. 2015) (per curiam) (applying Daimler’s test to reject
general personal jurisdiction under the Fifth Amendment); Abelesz v. OTP Bank, 692 F.3d
638, 660 (7th Cir. 2012) (relying on Goodyear, 564 U.S. 915); Fraser v. Smith, 594 F.3d 842,
850 (11th Cir. 2010); Synthes (U.S.A.) v. G.M. Dos Reis Jr. Ind. Com. de Equip. Medico,
563 F.3d 1285, 1297 (Fed. Cir. 2009); Porina v. Marward Shipping Co., 521 F.3d 122, 129
(2d Cir. 2008); Saudi v. Northrop Grumman Corp., 427 F.3d 271, 276 (4th Cir. 2005); Saudi
v. Acomarit Maritimes Servs., S.A., 114 F. App’x 449, 456 (3d Cir. 2004); Base Metal
Trading, Ltd. v. OJSC “Novokuznetsky Aluminum Factory”, 283 F.3d 208, 215 (4th Cir.
2002); United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 620 (1st Cir. 2001); Consol. Dev.
Corp. v. Sherritt, Inc., 216 F.3d 1286, 1292-93 (11th Cir. 2000).
23
In Daimler, the Supreme Court laid to rest the pervasive fallacy that International
Shoe’s use of the words “continuous and systematic” describes the level of contacts
necessary for exercising general personal jurisdiction. The Court explained that “the
words ‘continuous and systematic’ were used in International Shoe to describe instances in
which the exercise of specific jurisdiction would be appropriate.” Daimler, 571 U.S. at 138,
134 S. Ct. at 761 (citing Int’l Shoe, 326 U.S. at 317, 66 S. Ct. at 159). The plaintiffs try to
resuscitate that debunked notion.
19
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159 (jurisdiction over a corporate defendant is proper “when the activities of
the corporation [in the forum] have not only been continuous and systematic,
but also give rise to the liabilities sued on” (emphasis added)).
Furthermore, the Second, Sixth, Seventh, Eleventh, Federal, and
D.C. Circuits all agree that no meaningful difference exists between the Fifth
and Fourteenth Amendments’ minimum contacts analyses.24 In Livnat v.
Palestinian Authority, 851 F.3d 45 (D.C. Cir. 2017), the court rejected the
same federalism-based arguments urged here. The court pointed out that the
Supreme Court instinctively relied on its Fourteenth Amendment personal
jurisdiction jurisprudence when presented with an argument that asserting
jurisdiction in a Foreign Sovereign Immunity Act case would violate the Fifth
Amendment Due Process Clause.25 Id. at 54 (citing Republic of Argentina v.
Weltover, Inc., 504 U.S. 607, 620, 112 S. Ct. 2160, 2169 (1992) (quoting
Burger King, 471 U.S. at 475, 105 S. Ct. at 2183)). The court noted that every
circuit to “expressly analyze[] whether the Fifth and Fourteenth
Amendment standards differ” agreed “that there is no meaningful difference
in the level of contacts required for personal jurisdiction.” Id. at 54-55
(citations omitted). The court rejected the argument that the Fourteenth
Amendment’s federalism concerns fundamentally differentiate it from the
24
Livnat v. Palestinian Auth., 851 F.3d 45, 54-55 (D.C. Cir. 2017); Waldman v.
Palestine Liberation Org., 835 F.3d 317, 330 (2d Cir. 2016); Carrier Corp. v. Outokumpu Oyj,
673 F.3d 430, 449 (6th Cir. 2012); Abelesz, 692 F.3d at 660; Oldfield v. Pueblo de Bahia Lora,
S.A., 558 F.3d 1210, 1219 n.25 (11th Cir. 2009); Porina, 521 F.3d at 127-29; Deprenyl Animal
Health, Inc. v. Univ. of Toronto Innovations Found., 297 F.3d 1343, 1350 (Fed. Cir. 2002).
25
To be sure, the defendants in that case only raised the personal-jurisdiction
argument “as an aid in interpreting” FSIA’s direct-effect requirement. Republic of
Argentina v. Weltover, Inc., 504 U.S. 607, 619 n.2, 112 S. Ct. 2160, 2169 n.2 (1992)
(quotation omitted). But that in no way minimizes the significance of the fact that the
Supreme Court’s first instinct, when presented with a question of Fifth Amendment
personal jurisdiction, was to turn to its Fourteenth Amendment precedent.
20
No. 20-30382
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Fifth Amendment precisely because a “‘vital’ purpose of
personal-jurisdiction standards is to ‘ensure[] fairness to the defendant’”
and “protect ‘the sovereign concerns of other nations’ whose courts might
otherwise adjudicate the claims.” Id. at 55 (quoting Stabilisierungsfonds Fur
Wein v. Kaiser Stuhl Wine Distribs. Pty. Ltd., 647 F.2d 200, 203 n.4 (D.C. Cir.
1981) (per curiam)). Such considerations “weigh at least as heavily in the
Fifth Amendment context” as they do in the Fourteenth Amendment
context. Id. And not insignificantly, the court notes that “[a]pplying
consistent personal-jurisdiction standards under the Fifth and Fourteenth
Amendments is . . . easier to administer.” Id. at 55-56.
In the face of consistent authority from this and a large majority of the
circuits, we decline to jury rig a novel personal jurisdiction test under the
Fifth Amendment. We are not encouraged to do so because the Supreme
Court has occasionally reserved deciding the question whether “the Fifth
Amendment imposes the same restrictions on the exercise of personal
jurisdiction by a federal court” as does the Fourteenth Amendment on state
courts.26 See Bristol-Myers Squibb, 137 S. Ct. at 1784; Nicastro, 564 U.S. at
885, 131 S. Ct. at 2790; Omni Capital, 484 U.S. at 102 n.5, 108 S. Ct. at 408
n.5; Asahi, 480 U.S. at 113 n.*. Most recently, members of the Court seemed
uncertain about the tried and true Fourteenth Amendment standards. See
Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1032-33 (2021)
(Alito, J., concurring); Id. at 1034-35, 1038 (Gorsuch, J., concurring). Far be
26
It appears that the Court reserved only the predicate question whether it is
appropriate under the Fifth Amendment to consider “national contacts, rather than . . . the
contacts between the defendant and the State in which the federal court sits.” Asahi,
480 U.S. at 113 n.* (emphasis added); see also Bristol-Myers Squibb, 137 S. Ct. at 1784 (citing
Omni Capital, 484 U.S. at 102, n.5, which cites Asahi); Nicastro, 564 U.S. at 885, 131 S. Ct.
at 2790 (citing Asahi, 480 U.S. at 113 n.*) (plurality); Omni Capital, 484 U.S. at 102 n.5,
108 S. Ct. at 408 n.5 (citing Asahi, 480 U.S. at 113 n.*). No one here disputes the
applicability of national contacts under the Fifth Amendment.
21
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it for this lower court to muddy the waters further on a critical issue that
precedes litigation in every federal court.
3. Rule 4(k)(2) is not rendered a nullity.
To support their proposed test, the plaintiffs contend that employing
Fourteenth Amendment personal jurisdiction standards in the Fifth
Amendment context renders Rule 4(k)(2) a nullity.27 The argument is both
unpersuasive and belied by a formidable body of precedent.
As already explained, Rule 4(k)(2) is a procedural rule governing the
territorial limits of effective service. The Fifth Amendment due process
limitations on a federal court’s exercising jurisdiction over a foreign
defendant exist independently of Rule 4(k)(2) and are indeed contemplated
by the Rule itself. Rendering an interpretation of the Fifth Amendment based
on the effects that choice has on Rule 4(k)(2) would let the procedural tail
wag the constitutional dog.
More important, courts are routinely employing Fourteenth
Amendment personal jurisdiction standards in the Fifth Amendment
context, yet Rule 4(k)(2) cases involving specific personal jurisdiction have
arisen and continue to arise with regularity. See, e.g., CGC Holding Co. v.
Hutchens, 974 F.3d 1201 (10th Cir. 2020); Compania de Inversiones
Mercantiles, S.A. v. Grupo Cementos de Chihuahua S.A.B. de C.V., 970 F.3d
1269 (10th Cir. 2020); Plixer Int’l, Inc. v. Scrutinizer GmbH, 905 F.3d 1 (1st
27
Although the plaintiffs do not say so explicitly, perhaps their argument is that
adopting Daimler’s “at home” requirement would render Rule 4(k)(2) inapplicable in
general personal jurisdiction cases. That might be true. But even so, it is hardly troubling
that federal courts can rarely, if ever, exercise personal jurisdiction over foreign defendants
in cases raising claims that do not “arise out of or relate to” their contacts with the United
States. Cf. Daimler, 571 U.S. at 140-42, 134 S. Ct. at 762-63 (chastising Ninth Circuit for
failing to give heed to the “risks to international comity its expansive view of general
jurisdiction posed”).
22
No. 20-30382
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Cir. 2018); M-I Drilling Fluids UK Ltd. v. Dynamic Air Ltda., 890 F.3d 995(Fed. Cir. 2018); Adams, 364 F.3d 646; ISI Int’l, Inc. v. Borden Ladner Gervais
LLP, 256 F.3d 548 (7th Cir. 2001). The plaintiffs’ rhetoric fades in the face
of reality.
4. No admiralty law exception exists.
At a minimum, the plaintiffs contend, this case warrants a
more-indulgent personal jurisdiction standard because it involves admiralty
claims and admiralty is special. Admiralty, they point out, is uniquely a
creature of federal common law in addition to state and federal statutory law.
Admiralty’s broad jurisdiction has been described as extending “to all acts
and torts done upon the high seas, and within the ebb and flow of the sea.”
2 Joseph Story, Commentaries on the Constitution of
the United States 450, § 1665 (4th ed. 1873). Indeed, in no other
context do courts “have complete jurisdiction over suits . . . between
foreigners.” Langnes v. Green, 282 U.S. 531, 544, 51 S. Ct. 243, 248 (1931).
The Fifth Circuit has long claimed expertise in and appreciation for
admiralty’s tradition and peculiar jurisprudence, but shibboleths cannot
carry the plaintiffs’ argument. In fact, there is no textual support in the Fifth
Amendment for the plaintiffs’ proffered distinction and no case law favoring
their theory. About an admiralty “exception” to principles of personal
jurisdiction, no more need be said: The Due Process Clauses contain no
exception.
Further, plaintiffs’ historical argument misunderstands The
Belgenland, 114 U.S. 355, 5 S. Ct. 860 (1885), on which they principally rely.
In that case, a federal court adjudicated a dispute arising out of a collision on
the high seas between a Norwegian ship and a Belgian ship. 114 U.S. at 356-
58, 5 S. Ct. at 860-61. The federal courts exercised in rem jurisdiction over
the foreign ship, jurisdiction obtained because a U.S. marshal arrested the
23
No. 20-30382
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vessel at port in the federal court’s district. 114 U.S. at 356, 5 S. Ct. at 860.
Because a court’s jurisdiction over a ship arrested in its own district is
unassailable, personal jurisdiction there was a nonissue. Cf. Burnham v.
Superior Ct. of Cal., 495 U.S. 604, 619, 110 S. Ct. 2105, 2115 (1990) (plurality)
(concluding that “jurisdiction based on physical presence alone constitutes
due process because it is one of the continuing traditions of our legal system
that define the due process standard of ‘traditional notions of fair play and
substantial justice’”).28 The plaintiffs have confused personal jurisdiction
with subject matter jurisdiction, which the Supreme Court discussed in The
Belgenland. In sum, the plaintiffs’ proposed admiralty-exclusive extension of
due process standards for personal jurisdiction standard is all wet.
D. NYK is not amenable to jurisdiction in this dispute.
The foregoing discussion explains why the standards governing
personal jurisdiction are essentially the same under the Fifth and Fourteenth
Amendment Due Process Clauses. For federal claims filed in federal courts,
of course, the relevant minimum contacts are those with the entire United
States, not a forum state. The Fifth Amendment Due Process Clause
immunizes a non-resident, non-consenting defendant against a federal
court’s jurisdiction unless that defendant has “certain minimum contacts
with [the United States] such that the maintenance of the suit does not offend
‘traditional notions of fair play and substantial justice.’” Int’l Shoe, 326 U.S.
at 316, 66 S. Ct. at 158. Whether a defendant has “minimum contacts” with
a forum depends on the nature and extent of “the defendant’s relationship
to the forum.” Bristol-Myers, 137 S. Ct. at 1779. The focus on the
28
It is true that Pennoyer v. Neff, 95 U.S. 714 (1877), preceded The Belgenland by a
few years and was the first case in which the Supreme Court linked personal jurisdiction
with due process. As explained above, however, the latter case did not impinge on
Pennoyer’s analysis.
24
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defendant’s relationship with the forum underlies the general-specific
jurisdiction dichotomy. See Goodyear, 564 U.S. at 919, 131 S. Ct. 2851.
General jurisdiction is the sole avenue for exercising jurisdiction over
NYK here, because that is the only theory argued to the district court.29
General jurisdiction extends to “any and all” claims against the defendant
concerning events and conduct anywhere in the world. Id. But that breadth
comes with a reciprocal limit: “Only a select ‘set of affiliations with a forum’
will expose a defendant to such sweeping jurisdiction.” Ford Motor Co.,
141 S. Ct. at 1024 (quoting Daimler, 571 U.S. at 137, 134 S. Ct. at 760).
Normally, a corporation is “at home” in its “place of incorporation and
principal place of business.” Daimler, 571 U.S. at 137, 134 S. Ct. at 760. But
in an “exceptional case . . . a corporation’s operations in a forum other than
its formal place of incorporation or principal place of business may be so
substantial and of such a nature as to render the corporation at home in [the
United States].” Id. at 139 n.19.
Exercising general jurisdiction over NYK does not comport with its
Fifth Amendment due process rights. NYK is incorporated and
headquartered in Japan. As a result, exercising general jurisdiction over
NYK would require that its contacts with the United States “be so
substantial and of such a nature to render [it] at home” in the United States.
Daimler, 571 U.S. at 139 n.19, 134 S. Ct. at 761 n.19. Perkins v. Benguet
Consolidated Mining Co., 342 U.S. 437, 72 S. Ct. 413 (1952) remains the
lodestar for such exceptional circumstances. In Perkins, the defendant,
29
In the district court, the plaintiffs made clear that they did “not contend that the
Court has specific jurisdiction over NYK,” rather, they asserted that the court “has general
jurisdiction over NYK.” To the extent plaintiffs contend for the first time in this court that
the district court could exercise specific jurisdiction over NYK, their argument is waived.
FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994).
25
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Benguet, was a Filipino corporation that operated gold and silver mines in the
Philippines. Id. at 439. During World War II, Benguet’s president relocated
to Ohio and ran the company’s operations from there. Id. at 447-48. Ohio
state courts could exercise jurisdiction over Benguet because “Ohio was the
corporation’s principal, if temporary, place of business.” Keeton v. Hustler
Mag., Inc., 465 U.S. 770, 780 n.11, 104 S. Ct. 1473, 1481 n.11 (1984).
Not so with NYK and the United States. No doubt NYK’s contacts
with the United States are, in absolute terms, substantial. NYK ships call on
at least fifty U.S. ports, and NYK even dedicates several ships exclusively to
delivering cars between Japan and the United States. At one time, it operated
twenty-seven shipping terminals and six air-cargo terminals in the United
States.30 Overall, its North American entities generate about $1.47 billion in
consolidated revenue every year.31
But determining whether a defendant’s contacts are “so substantial
and of such a nature as to render the corporation at home” in the forum is an
inherently comparative inquiry. Daimler, 571 U.S. at 139 nn.19, 20, 134 S. Ct.
at 761-62 nn.19, 20. And comparatively, NYK’s contacts with the United
States comprise only a minor portion of its worldwide contacts. As the
district court recognized: “All 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.
30
NYK Group, Fact Book I 2017, 13-15 (Apr. 28, 2017),
https://www.nyk.com/english/ir/library/fact/first/2017/__icsFiles/afieldfile/2019/10/
17/2017_factbook01_all.pdf (last visited Oct. 23, 2021).
31
The plaintiffs also draw attention to the fact that NYK often litigates in federal
court, pointing out that, over the last decade, NYK has filed at least thirty lawsuits in
federal district courts, and that over thirty lawsuits were filed against NYK in federal
district courts. That a particular corporate defendant frequently litigates in a forum’s
courts also has no bearing on whether that defendant is essentially “at home” in the forum.
26
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Furthermore, NYK Line’s American employees represent less than 1.5
percent of all [its] employees.” Therefore, the United States is hardly “the
center of [NYK’s] activities” or a “surrogate for [NYK’s] place of
incorporation or head office.” Daimler, 571 U.S. at 130 n.8, 134 S. Ct. at 756
n.8. The district court’s determinations are not clearly erroneous, nor did it
apply the law incorrectly. Accordingly, NYK is not amenable to the general
jurisdiction of American courts despite its contacts with the United States.
IV. Conclusion
Seventy-six years ago, Justice Frankfurter opined that “[t]o suppose
that ‘due process of law’ meant one thing in the Fifth Amendment and
another in the Fourteenth is too frivolous to require elaborate rejection.”
Malinski v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J., concurring).
After considerable elaboration, this court confirms his intuition. We reject
the plaintiffs’ invitation to craft an atextual, novel, and unprecedented Fifth
Amendment personal jurisdiction standard. Under the Supreme Court’s
reigning test for personal jurisdiction, the district court’s well-reasoned
judgment absolving NYK from appearing in federal court is AFFIRMED.
27
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James C. Ho, Circuit Judge, joined by Costa, Circuit Judge, concurring:
The Fifth Amendment provides that no person may be “deprived of
life, liberty, or property, without due process of law.” U.S. Const. amend.
V. Everyone agrees that this language applies only to the federal government,
and that that’s why we have the Fourteenth Amendment—to ensure that the
states too may not “deprive any person of life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV.
There’s no denying the textual parallel between the Fifth and
Fourteenth Amendments. That’s why the majority today understandably
construes “due process of law” to mean the same thing under the Fifth and
Fourteenth Amendments alike.
Moreover, that approach is not only sensible as a textual matter—it
also makes for a simpler body of federal constitutional law. Our legal system
is already complex enough for litigants and lawyers, without additionally
forcing people to navigate two distinct bodies of federal constitutional rights,
depending on who’s on the right side of the “v.”
Accordingly, the majority reasonably holds—as has every other
circuit to have addressed the issue—that, when faced with a Fifth
Amendment question concerning personal jurisdiction, we apply Fourteenth
Amendment precedent governing personal jurisdiction.
The lead dissent responds that the meaning of words can change over
time. See post, at 43–44, 63 (Elrod, J., dissenting). As it correctly notes, the
Fifth Amendment was ratified in 1791—while the Fourteenth Amendment
was not ratified until 1868, three quarters of a century later. So the lead
dissent suggests that, whatever “due process” may have meant in 1868,
fidelity to original public meaning requires us to separately inquire whether
“due process” may have meant something different in 1791.
28
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That’s fair enough, as an intellectual matter. But in fairness to the
majority, the lead dissent does not point to a single Supreme Court decision
holding that we should interpret Fifth Amendment due process differently
from Fourteenth Amendment due process.
It simply says that the Supreme Court has reserved the issue. See post,
at 43 (Elrod, J., dissenting) (citing French v. Barber Asphalt Pav. Co., 181 U.S.
324, 328 (1901)). For example, it points out that a majority of the Supreme
Court once noted the possibility that a situation “may arise” in which it
“may be proper” to construe the Fifth and Fourteenth Amendments
differently. French, 181 U.S. at 328.
But French was issued before the Court embraced the doctrine of
incorporation. I write separately to explain how the Supreme Court’s
approach to incorporation is hard to square as a logical matter with the lead
dissent’s theory of linguistic drift under the Due Process Clause.
I.
Under the doctrine of incorporation, the Supreme Court has
repeatedly held that we should interpret the Due Process Clause of the
Fourteenth Amendment coextensively with a number of the provisions
contained in the Bill of Rights. As a result, when it comes to rights that are
incorporated against the states by the Due Process Clause, we apply the same
body of law to the states that we do to the federal government.
The Supreme Court most recently reaffirmed these principles in the
context of the Second Amendment right to keep and bear arms. Like the
Fifth Amendment, “[t]he Second Amendment was adopted in 1791; the
Fourteenth in 1868.” N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, _ U.S. _,
_ (2022). “For decades, the Supreme Court has referred to the Second
Amendment as a fundamental civil right, comparable to other provisions of
the Bill of Rights.” Mance v. Sessions, 896 F.3d 390, 398 (5th Cir. 2018) (Ho,
29
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J., dissenting from denial of rehearing en banc) (citing, e.g., Johnson v.
Eisentrager, 339 U.S. 763, 784 (1950)).
Yet everyone agrees that the Second Amendment, like the Fifth
Amendment, applies only to the federal government—hence the Fourteenth
Amendment, which the Supreme Court has interpreted to apply fundamental
rights like the Second Amendment to the states. See McDonald v. City of
Chicago, 561 U.S. 742 (2010).
But if the Second Amendment is just like the Fifth Amendment—
because both provisions precede the ratification of the Fourteenth
Amendment by 77 years—does that mean that the right to keep and bear arms
might apply differently to the United States than to the several states?
The Supreme Court has repeatedly held that the answer is no: “Bill
of Rights protections” like the Second Amendment must “be enforced
against the States under the Fourteenth Amendment according to the same
standards that protect those personal rights against federal encroachment.”
McDonald, 561 U.S. at 765 (cleaned up) (emphasis added). See also N.Y. State
Rifle, _ U.S. at _ (same).
There is, to be sure, a “scholarly debate” over whether courts should
look to “the prevailing understanding of an individual right when the
Fourteenth Amendment was ratified in 1868” or “the public understanding
of the right when the Bill of Rights was adopted in 1791” when determining
the scope of constitutional rights. Id. at _.
But the Supreme Court has held on numerous occasions that, whether
we define the right as it existed in 1791 or in 1868, the right is the same against
the federal government and the states alike. “[W]e have made clear that
individual rights enumerated in the Bill of Rights and made applicable against
the States through the Fourteenth Amendment have the same scope as against
the Federal Government.” Id. (emphasis added).
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The Court cited several examples where it has taken that approach.
See, e.g., Ramos v. Louisiana, 590 U.S. _, _ (2020) (“This Court has long
explained . . . that incorporated provisions of the Bill of Rights bear the same
content when asserted against States as they do when asserted against the
federal government.”) (emphasis added); Timbs v. Indiana, 586 U.S. _, _
(2019) (“[I]f a Bill of Rights protection is incorporated, there is no daylight
between the federal and state conduct it prohibits or requires.”) (emphasis
added); Malloy v. Hogan, 378 U.S. 1, 10–11 (1964) (“The Court thus has
rejected the notion that the Fourteenth Amendment applies to the States
only a watered-down, subjective version of the individual guarantees of the
Bill of Rights.”) (quotations omitted).
To this list of examples, I’ll add one more. The Court has decided
various challenges to state abortion laws—including the partial birth abortion
law that it held unconstitutional in Stenberg v. Carhart, 530 U.S. 914 (2000).
In Gonzales v. Carhart, 550 U.S. 124 (2007), the Court addressed a
constitutional objection to the federal Partial Birth Abortion Act.
Tellingly, the United States government did not even try to defend—
and the Court did not uphold—the federal Partial Birth Abortion Act on the
ground that Fifth Amendment due process is different from Fourteenth
Amendment due process. Not a single justice even flagged it as a potential
issue. Justice Thomas wrote separately to reaffirm his longstanding view that
“the Court’s abortion jurisprudence . . . has no basis in the Constitution”
without attempting to draw any distinction between the Fifth and Fourteenth
Amendments (as well as to ask, without deciding, whether the Act is allowed
under the Commerce Clause). Id. at 168–69 (Thomas, J., concurring).1
1
Nor was the argument presented by any of the parties in Carhart. The argument
was made only by amicus, and only in the court of appeals, which rejected the argument on
the merits. See Carhart v. Gonzales, 413 F.3d 791, 795 n.2 (8th Cir. 2005) (“One amicus
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II.
I see logical difficulties in squaring the dissenters’ theory of linguistic
drift with the Supreme Court’s longstanding incorporation jurisprudence.
To be sure, I’m all for following the text and original understanding of
the Constitution to the maximum extent permitted by a faithful reading of
Supreme Court precedent, as I’ve repeatedly noted. See, e.g., Williams v.
Taylor Seidenbach, Inc., 958 F.3d 341, 350 (5th Cir. 2020) (en banc) (Ho, J.,
concurring); Texas v. Rettig, 993 F.3d 408, 409, 417–18 (5th Cir. 2021) (Ho,
J., dissenting from denial of rehearing en banc); Williams v. Homeland Ins.
Co., 18 F.4th 806, 818–19 (5th Cir. 2021) (Ho, J., concurring). And
reasonable minds can debate in good faith the Supreme Court’s personal
jurisdiction precedent, and ask whether it is faithful to the original
understanding of the Constitution. Cf. Ford Motor Co. v. Mont. Eighth Jud.
Dist. Ct., 592 U.S. _, _ & n.2 (2021) (Gorsuch, J., concurring) (citing
differing views).
But the members of this court all agree that fidelity to Supreme Court
precedent must trump fidelity to text and original public meaning. And that
means reading precedent faithfully. “Lower court judges don’t have license
to adopt a cramped reading of a case in order to functionally overrule it.”
NLRB v. Int’l Ass’n of Bridge, Structural, Ornamental, & Reinforcing Iron
Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay,
J., dissenting from denial of rehearing en banc) (quotations omitted). See also
suggests Stenberg does not control because that case was decided under the Fourteenth
Amendment, which, of course, does not apply to the federal government. While Stenberg
was indeed a Fourteenth Amendment case, the Due Process Clause of the Fifth
Amendment is textually identical to the Due Process Clause of the Fourteenth
Amendment, and both proscribe virtually identical governmental conduct.”) (citing
Malloy, 378 U.S. at 8). The amicus declined to reprise the argument in the Supreme Court.
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Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU
J.L. & Liberty 44, 51 (2019) (“Of course, judges can always draw razor-
thin distinctions and contend that a particular issue is not governed by a non-
originalist precedent. But judges should resist this temptation.”). “[L]ogic
[may] demand[] that we extend an [allegedly] atextual body of precedent in
order to preserve rationality or consistency in the law.” Williams, 18 F.4th
at 821 (Ho, J., concurring).
Under the doctrine of incorporation, the Supreme Court has
repeatedly instructed that we must interpret the Due Process Clause of the
Fourteenth Amendment coextensively with various provisions of the Bill of
Rights. And therein lies the logical challenge I see with the dissent’s
proposed framework. For if we accept the dissenters’ theory of linguistic
drift when it comes to due process, logic would presumably require that we
entertain the possibility of linguistic drift in every aspect of due process.
For example, what does the First Amendment require when it comes
to the states? Well, we know the First Amendment might have meant one
thing in 1791, but something quite different in 1868. And so too with the
Second Amendment, the Fourth Amendment, the Eighth Amendment, and
so on.
So presumably the dissenters would apply a different body of First
Amendment law, Second Amendment law, and so on, to the states as
opposed to the federal government, in recognition of the possibility of
linguistic drift between 1791 and 1868.
But we don’t do that. Because the Supreme Court has told us we can’t
do that—most recently, in N.Y. State Rifle.
And that’s the logical problem I see with the dissent’s approach. If
Supreme Court precedent requires us to apply the same standard of “due
process” to the states and the federal government when it comes to other
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constitutional rights like the First and Second Amendments, what’s the logic
in applying different standards when it comes to due process itself?
If we’re being principled about linguistic drift, we presumably
wouldn’t limit it to just the Fifth Amendment—or just the Due Process
Clause of the Fifth Amendment. We would either allow for linguistic drift
with respect to every provision of the Bill of Rights—or to none of them.
To my mind, logical fidelity to Supreme Court precedent would seem
to suggest that the answer must be none.
III.
In response, the lead dissent says that “due process” is different
inasmuch as, unlike the incorporated provisions, it’s actually codified in the
text of the Fourteenth Amendment. See post, at 45–46 n.4 (Elrod, J.,
dissenting).
That’s obviously true as far as it goes: due process explicitly appears
in the text of the Fourteenth Amendment, while the incorporated provisions
are implicit in due process by operation of Supreme Court precedent.
But why should that matter? The dissent doesn’t explain. And it’s
hard to understand, especially considering that Supreme Court precedent
essentially directs us to act as if the words of the First Amendment, the
Second Amendment, and so on appear alongside the Due Process Clause in
the Fourteenth Amendment. See, e.g., McDonald, 561 U.S. at 791 (“[A]
provision of the Bill of Rights that protects a right that is fundamental from
an American perspective applies equally to the Federal Government and the
States. We therefore hold that the Due Process Clause of the Fourteenth
Amendment incorporates the Second Amendment.”) (citation omitted).
Moreover, the dissent’s logic, if anything, gets things exactly
backwards. The Fifth and Fourteenth Amendment Due Process Clauses use
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the same words—and so that’s the reason we should apply different
standards? It’s a curious way to split the baby.
Nor do I understand what the dissent hopes to accomplish by drawing
a distinction between “reverse” versus “plain-vanilla” incorporation. See
post, at 45 n.4 (Elrod, J., dissenting). I’ll just sum things up this way:
Everyone agrees that both the federal government and the states are subject
to due process. And everyone agrees that this includes not only due process
qua due process, but also various other provisions in the Bill of Rights. The
only disagreement is whether we should apply the same legal standards under
various provisions in the Bill of Rights—except for “due process” itself. If
there’s a case for applying one body of law when it comes to all the provisions
that due process incorporates, but two bodies of law when it comes to due
process itself, I’m not sure what it is, and I’m not sure that the dissenters
have made it.
IV.
As for Judge Oldham’s solo dissent, I’ll begin by noting where we
substantially agree. Like me, Judge Oldham makes clear that he does not
endorse the lead dissent’s theory of linguistic drift. See post, at 101 (Oldham,
J., dissenting). Like me, Judge Oldham does not say that there are two
distinct bodies of due process law, one that governs the states and another
that governs the federal government. Rather, he suggests that “none of the
personal-jurisdiction limits—for any government, state or federal—come
from the Fifth or Fourteenth Amendments,” but rather, “[t]hey instead
come from the common law.” Id. at 102–03 n.1.
So we agree that there is one body of due process law, not two. Here’s
where we part company, then: If we’re agreed that there’s only a single body
of due process law, then I don’t see how we can ignore Supreme Court
precedent under Fourteenth Amendment due process in a case involving
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Fifth Amendment due process. And that’s where my reference to the
doctrine of incorporation comes in.
Judge Oldham dismisses my invocation of the incorporation doctrine
on the ground that that is a doctrine of substantive due process—whereas
this is a personal jurisdiction case, which implicates procedural due process.
See id. at 102. He makes the same observation about the judicially-created
right to abortion examined in Carhart. See id. at 103.
He’s of course entirely right that both the incorporation doctrine
generally, and abortion in particular, are creatures of substantive due process.
But I don’t see why the substantive/procedural due process distinction
should make any difference here.
To explain why, let me first summarize his core argument. It proceeds
like this: “The Supreme Court has confessed that its Fourteenth
Amendment personal jurisdiction precedents do not rest on original public
meaning.” Id. at 102. Accordingly, he concludes, as originalists, we’re
allowed to ignore that body of law, which applies only to states, when it comes
to Fifth Amendment cases, which involve the federal government. Id.
My response is that that is the opposite of what we do under the
doctrine of incorporation—where we apply the same body of law to the states
and the federal government.
It’s also the opposite of what happened in Carhart. Just like the
Court’s personal jurisdiction precedents, the Supreme Court’s abortion
precedents “do not rest on original public meaning” (at least not before
Dobbs). Id. Yet, as I point out, the federal government did not even bother
to argue in Carhart that it can ignore the Court’s Fourteenth Amendment
abortion law when it comes to Fifth Amendment cases.
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Yes, those examples come from substantive due process—whereas
this case involves procedural due process. But I’m not sure why we would
apply one approach to precedent in substantive due process cases (follow the
14th when it comes to the 5th), and precisely the opposite approach to
precedent in procedural due process cases (ignore the 14th when it comes to
the 5th). I would have thought that our duty to be faithful to Supreme Court
precedent doesn’t wax and wane depending on which underlying body of law
the precedent entails.
Finally, in a footnote, Judge Oldham notes that the Supreme Court
has repeatedly declined to address the question of divergence in personal
jurisdiction cases even after it started incorporating various other provisions.
See id. at 103 n.2. Again, that’s true, I just don’t know what it proves. The
Supreme Court ordinarily does not weigh in on issues absent a circuit split.
And here, there is none—every circuit to have addressed the issue has
rejected the theory of divergence when it comes to personal jurisdiction.
V.
One final concern before I close: Embracing the linguistic drift theory
urged by the lead dissent would involve an additional layer of complication—
the launching of an unprecedented second body of substantive federal
constitutional law.
Of course, if text and original understanding compel complexity, then
complexity we shall give. But all things equal, we should endeavor to make
the law simpler, not more byzantine.
Perhaps the Supreme Court will someday switch gears and embrace
the dissent’s view that due process under the Fifth Amendment is indeed
different from due process under the Fourteenth Amendment. Perhaps the
Court will one day hold that fidelity to text and original public meaning
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necessitates the complexity of developing two distinct bodies of federal
constitutional rights—one against the feds and one against the states.
But until then, I will stick with the simplicity of the approach adopted
by the majority of my colleagues—not to mention all of the circuits that have
previously addressed the issue. I concur.
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Jennifer Walker Elrod, Circuit Judge, joined by Graves,
Higginson, Willett, and Oldham, Circuit Judges, dissenting:*
The majority today holds that the Fifth Amendment’s Due Process
Clause “immunizes” from suit in federal court a multinational corporation
with extensive business dealings in the United States and which litigates here
frequently as a plaintiff. Defendant–Appellee Nippon Yusen Kabushiki
Kaisha (“NYK”), an international shipping conglomerate, calls regularly on
American ports, operates numerous shipping terminals here, and reaps
hundreds of millions of dollars in annual revenue in so doing. In the course
of its substantial business here, NYK has invoked the power of our federal
courts to protect its rights as a plaintiff over seventy-five times. But today, the
en banc court holds that it would “offend ‘traditional notions of fair play and
substantial justice’” for injured United States servicemen and bereaved
military families to sue NYK in United States federal court.
Today’s result is as needless as it is confounding: The majority
opinion fails to prove—as a matter of the Fifth Amendment’s text, history,
and structure—the existence of a principled limit on Congress’s ability to
authorize federal courts’ personal jurisdiction over a foreign defendant.
Relying entirely on inapposite Fourteenth Amendment precedent, the
majority opinion arrives at a conclusion that will nullify Federal Rule of Civil
Procedure 4(k)(2) in most of its applications, crush the chances of American
terror victims seeking recovery in federal court, and, quite anomalously,
afford foreign civil defendants greater due process protection than foreign
criminal defendants.
*
Judge Higginson joins Part VI of this opinion. Judge Oldham joins Parts II.B and
VI of this opinion.
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Because the Fifth Amendment’s Due Process Clause does not shield
NYK from suit in United States federal court, I would hold that the district
court has personal jurisdiction in this case. I respectfully dissent.
I.
The ACX Crystal, a foreign cargo ship, crashed into the U.S.S.
Fitzgerald, a U.S. Navy destroyer, in Japanese waters. Seven sailors were
killed. Forty were injured. Seeking damages under admiralty law and the
Death on the High Seas Act, the bereaved and injured sued NYK, the foreign
shipping company that chartered the vessel, in federal court.
In both cases consolidated before us on appeal, NYK sought and the
district court granted dismissal for lack of personal jurisdiction. The injured
Navy sailors and bereaved families appealed. They argued that the Fifth
rather than Fourteenth Amendment governed the extent of federal courts’
personal jurisdiction over foreign defendants pursuant to Federal Rule of
Civil Procedure 4(k)(2). And the Supreme Court’s Fourteenth Amendment
personal jurisdiction precedents, they argued cogently, neither bind us nor
should be imported into the Fifth Amendment context.
Bound by a prior panel opinion, Patterson v. Aker Solutions, Inc., 826
F.3d 231 (5th Cir. 2016), this court affirmed, in keeping with the rule of
orderliness. Douglass v. Nippon Yusen Kabushiki Kaisha, 996 F.3d 289, 297–
300 (5th Cir. 2021). Without discussion of the relevant differences between
the Constitution’s due process clauses, Patterson had applied recent Supreme
Court precedents from the Fourteenth Amendment context to a Fifth
Amendment case. Patterson, 826 F.3d at 234. The panel in this case noted
that it was constrained to do the same. But it added that, absent Patterson,
plaintiffs–appellants’ position was “persuasive,” and indeed, “ha[d] merit.”
Douglass, 996 F.3d at 293–97.
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Two panel members specially concurred. Id. at 300–02 (Elrod, J.,
joined by Willett, J., specially concurring). The concurrence “agree[d] with
the majority opinion that the case would be decided differently if we were not
bound by Patterson,” and called all hands on deck to reevaluate our
precedent. Id. Several important considerations counseled in favor of
“apply[ing] a jurisdictional framework that distinguishes between Fifth
Amendment and Fourteenth Amendment due process standards.” Id. at
301. For one thing, “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.” Id. We further warned against “imposing restraints on federal
courts’ exercise of personal jurisdiction (and . . . Congress’s ability to
authorize jurisdiction by statute) beyond what the Constitution requires.”
Id. With these concerns in mind, we invited the court to take a different tack
en banc.
The full court accepted our invitation to reconsider the propriety of
applying the Supreme Court’s Fourteenth Amendment precedents in the
Fifth Amendment context. But today the majority opinion declines to chart
a new course, leaving our precedent at sea and the plaintiffs high and dry.
II.
What does the Due Process Clause of the Fifth Amendment have to
say about personal jurisdiction?
Our circuit’s precedents are awash with confusion: On the one hand,
we have made clear that the Fifth Amendment—and not the Fourteenth
Amendment—governs due process challenges to federal courts’ exercise of
jurisdiction over foreign defendants pursuant to Rule 4(k)(2). See, e.g.,
Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 420 (5th
Cir. 2001) (“The due process required in federal cases governed by Rule
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4(k)(2) is measured with reference to the Fifth Amendment, rather than the
Fourteenth Amendment.”). On the other hand, our Rule 4(k)(2) personal
jurisdiction cases have generally tracked Supreme Court case law from the
Fourteenth Amendment context. See, e.g., Adams v. Unione Mediterranea Di
Sicurta, 364 F.3d 646, 652 (5th Cir. 2004) (citing Fourteenth Amendment
precedent including Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408 (1984), and World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286(1980)); Patterson, 826 F.3d at 234 (applying Daimler AG v. Bauman, 571 U.S.
117 (2014)).
Left entirely unexplained is why we have silently imported Fourteenth
Amendment jurisprudence into our Fifth Amendment cases. We have
assumed, without argument, that the Fifth and Fourteenth Amendment Due
Process Clauses operate in exactly the same manner vis-à-vis personal
jurisdiction. See, e.g., Patterson, 826 F.3d at 234 (providing no explanation
for the case’s application of the latest Fourteenth Amendment precedents
from the Supreme Court in ruling on a Fifth Amendment question); World
Tanker Carriers Corp. v. M/V Ya Mawlaya, 99 F.3d 717, 723–24 (5th Cir.
1996) (applying, without explanation, the “now familiar [Fourteenth
Amendment] minimum contacts analysis” in a Rule 4(k)(2) personal
jurisdiction case, without even mentioning the Fifth Amendment once). But
this unspoken assumption is unsound. The Fifth Amendment does not
merely carry Fourteenth Amendment ballast. It has its own text, history, and
structural implications. Its Due Process Clause need not parrot what the
Supreme Court has said about the Fourteenth’s.
Perhaps our court has considered the relationship between the Fifth
and Fourteenth Amendment Due Process Clauses too obvious to require
argument. The majority opinion implies as much with its concluding
quotation from Justice Frankfurter’s solo concurrence in Malinski v. New
York, 324 U.S. 401 (1945): “To suppose that ‘due process of law’ meant one
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thing in the Fifth Amendment and another in the Fourteenth is too frivolous
to require elaborate rejection.” Id. at 415 (Frankfurter, J., concurring); ante
at 27. A six-justice majority of the Supreme Court, however, has taken a
different view, writing: “[A]s the[] [Fifth and Fourteenth Amendments]
were ingrafted upon the Constitution at different times and in widely
different circumstances of our national life, it may be that questions may arise
in which different constructions and applications of their provisions may be
proper.” French v. Barber Asphalt Pav. Co., 181 U.S. 324, 328 (1901);1 see also
Wight v. Davidson, 181 U.S. 371, 384 (1901) (“[I]t by no means necessarily
follows that a long and consistent construction put upon the 5th Amendment
[Due Process Clause] . . . is to be deemed overruled by a decision concerning
the operation of the 14th Amendment as controlling state legislation.”);
Carroll v. Greenwich Ins. Co. of N.Y., 199 U.S. 401, 410 (1905) (Holmes, J.)
(refusing to “affirm that in no instance could a distinction [between the
amendments] be taken”).
The relationship between the amendments’ Due Process Clauses and
the limits of federal courts’ personal jurisdiction clearly merits “considerable
elaboration.” Ante at 27. Far from frivolous, this thorny topic has launched
more than a few law review articles.2 Indeed, the latest originalist scholarship
strongly suggests that “‘due process of law’ has undergone linguistic drift.”
Max Crema & Lawrence B. Solum, The Original Meaning of “Due Process of
1
Contra French, 181 U.S. at 355 (Harlan, J., dissenting) (“[D]ue process of law
cannot mean one thing under the 5th Amendment and another thing under the 14th
Amendment, the words used being the same in each amendment.”).
2
For just a small sampling, see generally, e.g., Stephen E. Sachs, The Unlimited
Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020); Jonathan Remy Nash,
National Personal Jurisdiction, 68 Emory L.J. 509 (2019); Wendy Perdue, Aliens, the
Internet, and “Purposeful Availment”: A Reassessment of Fifth Amendment Limits on Personal
Jurisdiction, 98 Nw. U. L. Rev. 455 (2004); see also Stephen E. Sachs, Pennoyer Was Right,
95 Tex. L. Rev. 1249 (2017).
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Law” in the Fifth Amendment, 108 Va. L. Rev. 447, 453 (2022). That is, “its
meaning has changed since the First Congress proposed [the Fifth
Amendment] for ratification” in 1789, and before the 39th Congress
proposed the Fourteenth Amendment in 1866. Id. at 453, 461–524
(examining a wide array of primary sources and conducting rigorous
historical and corpus-linguistics analysis). Thus, it is quite reasonable to
think that the original public meaning of the Fifth Amendment’s Due Process
Clause diverges from the Fourteenth Amendment’s as it bears upon personal
jurisdiction—particularly given the interstate-federalism principles baked
into the Fourteenth Amendment.3
The Supreme Court itself has specifically flagged and repeatedly
reserved the question before us for another day. See, e.g., Bristol-Myers Squibb
Co. v. Sup. Ct. of Cal., S.F. Cnty., 137 S. Ct. 1773, 1783–84 (2017) (“[S]ince
our decision concerns the due process limits on the exercise of specific
jurisdiction by a State, we leave open the question whether the Fifth
Amendment imposes the same restrictions on the exercise of personal
3
The concurring opinion readily acknowledges the theoretical possibility of
linguistic drift over time. Ante at 28 (Ho, J., concurring). Although my concurring
colleague comes to a different conclusion, he recognizes that it is “fair enough, as an
intellectual matter” to account for linguistic drift in discerning constitutional provisions’
original public meanings. Id. at 29. Our disagreement flows not from our judicial
philosophies but from our divergent good-faith readings of Supreme Court precedent. See,
e.g., infra n.4.
Relatedly, the concurring opinion expresses an additional concern that this theory
of linguistic drift would introduce “an additional layer of complication” in federal
constitutional law—and “all things equal, we should endeavor to make the law simpler, not
more byzantine.” Ante at 37 (Ho, J., concurring) (emphasis added). We ought not opt for
Occam over originalism. The concurring opinion agrees. Id. (“Of course, if text and
original understanding compel complexity, then complexity we shall give.”). But ceteris
paribus, simplicity would weigh in favor of fewer limits on personal jurisdiction, not more.
And that simpler result aligns with the original meaning of the Fifth Amendment’s Due
Process Clause. See infra n.35.
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jurisdiction by a federal court.”); J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S.
873, 885 (2011) (plurality op.) (noting that it was unnecessary “to address . . .
any constitutional concerns that might be attendant” to more expansive
federal court exercises of personal jurisdiction over foreign defendants); post
at 96 (Higginson, J., dissenting).4
4
See also, e.g., Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 102
n.5 (1987) (stating that the Court had no occasion to address the Fifth Amendment’s
applicability to personal jurisdiction); Asahi Metal Indus. Co. v. Superior Ct. of Cal., Solano
Cnty., 480 U.S. 102, 113 n.* (1987) (same).
In the face of the Supreme Court’s repeated reservation of this question for a future
case, the concurring opinion claims that the Court has already answered it. Ante at 29–31
(Ho, J., concurring). It has not.
The concurrence first relies on the Court’s statements about incorporation
doctrine. The argument seems to go like this: (A) the Supreme Court has held that
“incorporated provisions of the Bill of Rights bear the same content when asserted against
States as they do when asserted against the federal government,” id. at 31 (quoting Ramos
v. Louisiana, 140 S. Ct. 1390, 1397 (2020) (emphasis omitted)); (B) the Fourteenth
Amendment’s Due Process Clause incorporates the Fifth Amendment’s Due Process
Clause against the states; thus, the concurrence concludes, (C) any Fifth Amendment
rights vis-à-vis personal jurisdiction must “bear the same content” as those under the
Fourteenth Amendment’s Due Process Clause, id. at 29–31.
There are at least two problems with this argument. First, it turns incorporation
doctrine upside-down. This case is actually about reverse incorporation—that is, reading
(newer) Fourteenth Amendment jurisprudence into the (older) Fifth Amendment Due
Process Clause, rather than vice versa. And none of the concurrence’s plain-vanilla
incorporation cases suggest we must—or even should—transplant the Supreme Court’s
personal jurisdiction doctrine from the Fourteenth Amendment into the Fifth
Amendment. Second, it is hardly obvious that the Fifth Amendment’s Due Process Clause
is “just like” the Second Amendment or any other provision in the Bill of Rights vis-à-vis
incorporation. Id. at 30. With due process, the Amenders did something special: they gave
the Fourteenth Amendment its own Due Process Clause. So, the Fifth Amendment’s Due
Process Clause never needed to be “incorporated” through the Fourteenth Amendment’s
Due Process Clause. The former never needed to pass through the latter’s lens to be
refracted against the states. The Fourteenth Amendment’s Due Process Clause already
applied to the states directly. For that reason, it does not follow that the scope of the rights
protected by the two clauses must bear the same content. Incidentally, this also explains
why linguistic drift is relevant only to the Fifth Amendment context—and thus why we
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In my view, it is precisely our duty as an inferior court to percolate the
arguments raised by this novel constitutional issue for eventual Supreme
Court review. Cf. Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 600
(2020) (Gorsuch, J., concurring in grant of stay) (noting that the percolation
“process that permits the airing of competing views . . . aids this Court’s own
decisionmaking process”); Box v. Planned Parenthood of Ind. & Ky., Inc., 139
S. Ct. 1780, 1784 (2019) (Thomas, J., concurring) (“[F]urther percolation
may assist our review of [an] issue of first impression . . . .”). We are asked
in this case to interpret the Fifth Amendment’s Due Process Clause with
respect to federal court personal jurisdiction—a question of first impression
that the Supreme Court has repeatedly declined to answer. And when we are
called to interpret a constitutional provision without on-point Supreme
Court guidance, we should look first to the Constitution’s text, history, and
structure before we borrow freely from adjacent Supreme Court
jurisprudence.5
would not “apply a different body of First Amendment law, Second Amendment law, and
so on, to the states as opposed to the federal government.” See id. at 33.
In support of its view, the concurring opinion also points to Gonzales v. Carhart,
550 U.S. 124 (2007), where the Court upheld a federal-law abortion restriction without
considering whether the Fifth Amendment’s Due Process Clause creates a different
framework than the Fourteenth Amendment’s when it comes to abortion jurisprudence.
See ante at 31 (Ho, J., concurring). Carhart is wholly inapposite. No scholar, litigant, or
jurist had offered any plausible reason to think that the original public meaning of the Fifth
and Fourteenth Amendments differed as to the permissibility of abortion restrictions. Here
by contrast, as multiple scholars have explained in detail, the Fifth and Fourteenth
Amendments had distinct original understandings when it came to the jurisdictional
restrictions they imposed on federal and state courts, respectively. See, e.g., Sachs,
Unlimited Jurisdiction, supra, at 1708–09, 1710–27. The non-discussion of an irrelevant
question in an unrelated case does not prevent us from reaching the right answer to a
constitutional question that the Supreme Court has expressly left open.
5
Cf. Antonin Scalia, Common Law Courts in a Civil-Law System in A Matter of
Interpretation 39 (1997) (disapprovingly describing constitutional analysis that takes as its
“starting point” Supreme Court case law and thus removes from focus the Constitution’s
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We are bound to apply controlling law as it stands. In this case, there
is no controlling Supreme Court precedent. What controls is the Fifth
Amendment Due Process Clause. If the en banc majority is convinced that
the Fifth Amendment Due Process Clause, as originally understood, imposes
the same set of jurisdictional rules that the Supreme Court has decreed
pursuant to the Fourteenth Amendment, then it bears the burden of proving
that with reference to the Fifth Amendment’s text, history, and structure.
The majority opinion has made no such effort. See ante at 7 n.8. It fails to
meet its burden from the very get-go.6 Indeed, the majority opinion could
“original text and understanding”); Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S.
Ct. 1017, 1036 n.2 (2021) (Gorsuch, J., concurring in the judgment) (indicating that “the
right question” to be asking in Fourteenth Amendment personal jurisdiction context is
“what the Constitution as originally understood requires”).
Both parties in this case ask us to take as our “starting point” Supreme Court
personal jurisdiction case law from the Fourteenth Amendment context. Appellees
vigorously contend that Fourteenth Amendment personal jurisdiction case law,
particularly Daimler, 571 U.S. 117, controls our interpretation of the Fifth Amendment’s
Due Process Clause in this case. Meanwhile, appellants argue that Fourteenth Amendment
case law does not bind us in the Fifth Amendment context; but they nonetheless ask us to
kick off our analysis with International Shoe Co. v. Washington, 326 U.S. 310 (1945), while
refraining from relying on its progeny. I disagree with both approaches because both start
not with the Fifth Amendment but with inapplicable Fourteenth Amendment case law.
Thus, I agree with the majority opinion that we ought to “reject the plaintiffs’
invitation to craft an atextual, novel, and unprecedented Fifth Amendment personal
jurisdiction standard” that is not founded upon the amendment’s original understanding.
Ante at 27. But, as I explain in this dissent, we also ought to reject NYK’s invitation to
calcify our current Fifth Amendment precedents, which erroneously import Fourteenth
Amendment Supreme Court jurisprudence.
6
The majority opinion’s footnoted response to this dissent is unresponsive on this
score: Lacking Supreme Court case law restricting federal courts’ exercise of personal
jurisdiction under the Fifth Amendment, NYK must convince us, as a matter of text,
history, and structure, that the Fifth Amendment’s Due Process Clause merely mimes the
Fourteenth’s as to personal jurisdiction. But NYK has made no such argument, and nor
has the majority opinion. See ante at 7 n.8.
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In fact, the majority opinion expressly refuses to engage with the contrary
arguments presented in this dissent, declining to address anything but “the exact arguments
raised by the plaintiffs.” Id. (emphasis added). Respectfully, I do not think our approach
should be so blinkered. Of course we take cases as they are presented to us, but that does
not mean that we must parrot parties’ “exact” views in our opinions. Our duty is to resolve
the appeal correctly and offer our independent explanation of the bases for our decision. See
United States v. Brace, 145 F.3d 247, 267 (5th Cir. 1998) (en banc) (DeMoss, J.,
dissenting) (“To refrain from independent analysis is to abdicate the essential function of
judging. . . . Just as we do not abdicate our judicial responsibilities and blindly accept the
parties’ stipulations, neither do we don blinders and confine our consideration to those
legal doctrines that are presented by the parties.”).
More to the point, however, plaintiffs-appellants themselves raised all the
arguments necessary to succeed here on appeal: Although neither they nor their amici
ground their proposed ‘national contacts’ test in the original understanding of the Fifth
Amendment, they did argue—quite correctly—that Fifth Amendment personal
jurisdiction standards are not dictated by Fourteenth Amendment jurisprudence. See
Appellants’ En Banc Br. 18–20, 18 n.5 (citing, inter alia, Sachs, Unlimited Jurisdiction,
supra, and early nineteenth-century cases Picquet v. Swan, 19 F. Cas. 609 (C.C.D. Mass.
1828) and Toland v. Sprague, 37 U.S. 300 (13 Pet.), 327 (1838)); En Banc Oral Argument at
25:20–25:57 (noting but not relying upon originalist scholarship to fashion a middle-ground
‘national contacts’ test); id. at 58:12–58:53 (“It’s also important to understand that there
is considerable originalist scholarship that the Fifth Amendment does not address personal
jurisdiction. I mentioned the Stephen Sachs article, he’s actually written several articles to
that effect.”).
That being the case, the onus was on NYK to persuade us that we should continue
to use Fourteenth Amendment jurisprudence to cast light on the Fifth Amendment and
restrict the constitutional applicability of Rule 4(k)(2). Cf. Baldwin v. Missouri, 281 U.S.
586, 599 (1930) (“As this Court has often held, the burden rests upon him who assails a
statute to establish its unconstitutionality.”); Brown v. Maryland, 25 U.S. (12 Wheat.) 419,
436–37 (1827) (“It has been truly said, that the presumption is in favour of every legislative
act, and that the whole burthen of proof lies on him who denies its constitutionality.”). In
my view, NYK has failed to do so. And, without a reason to affirm the district court’s
restrictive view of its ability to exercise personal jurisdiction under the Fifth Amendment’s
Due Process Clause, we should overrule our misguided precedents in this area and reverse
the district court’s dismissal for lack of jurisdiction.
The majority opinion further suggests that this dissent fails on its own terms
because Congress has not acted to extend federal court jurisdiction. See ante at 7 n.8; infra
section II.B. Not so. Rule 4(k)(2), promulgated and enacted pursuant to the Rules
Enabling Act with Congress’s imprimatur, plainly supports personal jurisdiction here. See
Fed. R. Civ. P. 4(k)(2); 28 U.S.C. §§ 2071–2077; id. §§ 2074, 2075 (providing Congress
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not meet its burden if it tried. The text, history, and structural implications
of the Fifth Amendment Due Process Clause suggest that its original public
meaning imposed few (if any) barriers to federal court personal jurisdiction.
A.
First, the text. The Fifth Amendment Due Process Clause provides:
“No person shall be . . . deprived of life, liberty, or property, without due
process of law[.]” U.S. Const. amend. V. This provision, Justice Joseph
Story explained in 1833, draws upon “the language of magna charta, ‘nec
super eum ibimus, nec super eum mittimus, nisi per legale judicium parium
suorum, vel per legem terrae,’ neither will we pass upon him, or condemn him,
but by the lawful judgment of his peers, or by the law of the land.”7 3 Joseph
Story, Commentaries on the Constitution of the United States § 1783
(Hillard, Gray, & Co. 1833). Citing the renowned seventeenth century
English jurist Lord Coke, Alexander Hamilton wrote in 1784 that “[i]f we
enquire what is meant by the law of the land, the best commentators will tell
us, that it means due process of law, that is, by indictment or presentment of good
and lawful men, and trial and conviction in consequence.” Alexander
Hamilton, A Letter from Phocion to the Considerate Citizens of New York (Jan.
1784), reprinted in 3 The Papers of Alexander Hamilton 485, 485–86 (Harold
C. Syrett & Jacob E. Cooke eds., 1962) (emphasis in original) (referring to
with a statutory window of at least seven months to reject, modify, or defer any proposed
rule, after which period proposed rules take effect with Congressional approval).
7
Up until about a century ago, the predominant spelling of the Great Charter was
“Magna Charta,” pronounced the same as it is today (with a hard -k- sound). See Bryan A.
Garner, A Magna Carta Style Guide, 101 A.B.A. J. 26, 26 (2015). In an “astonishingly swift
reversal of linguistic fortune,” English speakers in the twentieth century began spelling it
“Magna Carta,” at least in part because of pervasive mispronunciation with a -ch-
sound. See id.49
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2 Edward Coke, Institutes of the Lawes of England 50 (1642)).8 Indeed, the
relationship between “law of the land” and “due process of law” antedates
Lord Coke’s magisterial interpretation of Magna Carta by nearly three
centuries.9
Over the course of almost six centuries between the signing of Magna
Carta in 1215 and the American Founding in the late eighteenth century, the
related phrases “law of the land” and “due process of law” came to signify
the procedural protections of the English positive law.10 Sir William
8
Justice Story also cited Lord Coke in making the broader assertion that “per legem
terrae (by the law of the land) mean[s] by due process of law.” See Story, supra, at § 1783;
Crema & Solum, supra, at 516–24 (arguing that Justice Story may have misread Lord Coke
in conflating the broader legal expression “law of the land” with its narrower subset “due
process of law”). Mid-nineteenth century cases began to adopt Justice Story’s broad
equation of “law of the land” with “due process of law.” See, e.g., Den ex dem. Murray v.
Hoboken Land & Imp. Co., 59 U.S. (18 How.) 272, 276 (1855) (“The words, ‘due process of
law,’ were undoubtedly intended to convey the same meaning as the words, ‘by the law of
the land,’ in Magna Charta.” (citing, inter alia, Lord Coke)). But, as Hamilton’s “Letter
from Phocion” illustrates, the Founding generation understood “law of the land” to
encompass both “due process of law” (i.e., indictment, presentment, service of the proper
writ) and civil and criminal procedure more generally (i.e., motions practice, trial). See
Crema & Solum, supra, at 504–06. Thus, “due process of law,” as originally understood
at the time that the Fifth Amendment was proposed and ratified, likely had a narrower
meaning than it came to have by the time the Fourteenth Amendment was proposed and
ratified. See also infra section II.C.1.
9
See 28 Edw. 3, c. 3 (1354) (Eng.) (implementing Magna Carta’s thirty-ninth
chapter and using “due Process of the Law” (albeit in law French) in place of “law of the
land”). Note that Magna Carta’s chapter divisions were only standardized in the
eighteenth century by Sir William Blackstone. On Blackstone’s numbering system, the ‘per
legem terrae’ chapter is thirty-nine in the original 1215 Magna Carta, and twenty-nine in the
1225 issue, which is also frequently cited.
10
See Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale
L.J. 408, 428–34 (2010) (“[A]n eighteenth-century reader well-versed in English law
would likely have understood both the law of the land and due process of law to require
only compliance with duly enacted positive law . . . .”); Murray’s Lessee v. Hoboken Land &
Improvement Co., 59 U.S. (18 How.) 272, 276 (1856) (“‘[D]ue process of law’ generally
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Blackstone, for instance—another renowned English jurist whose work, like
Coke’s, deeply influenced American legal thought—wrote of “the
affirmative acts of parliament wherein justice is directed to be done according
to the law of the land,” and noted that the law of the land “depends not upon
the arbitrary will of any judge; but is permanent, fixed, and unchangeable,
unless by authority of parliament.” 1 William Blackstone, Commentaries *141–
42 (emphasis added).
An early eighteenth-century case, Regina v. Paty (1704) 92 Eng. Rep.
232 (Q.B.), exemplified the prevailing conception of due process in the years
leading up to the American Founding. Petitioners in that case sought habeas
corpus, having been jailed on a warrant issued by the speaker of the House of
Commons for allegedly breaching parliamentary privilege. Id. at 232–33.
They argued that their incarceration violated Magna Carta’s assurance that
“no man ought to be taken or imprisoned but by the law of the land.” Id. at
233 (reporting petitioners’ objections). Three of the four justices hearing the
case denied the petitioners’ claim. Id. at 232–33 (Gould, J.), 233–35 (Powys,
J.), 235–36 (Powell, J.). As reported, Justice Powys addressed petitioners’
argument as follows:
[T]o this I answer, that lex terrae is not confined to the common
law, but takes in all the other laws, which are in force in this
realm; as the civil and canon law, &c. and among the rest, the
Lex Parliamenti. By the 28 Ed. 3, c. 3, there the words lex terrae,
which are used in Mag. Char. are explained by the words, due
process of law; and the meaning of the statute is, that all
commitments must be by a legal authority. And the law of
Parliament is as much a law as any; nay, if there be any
superiority, this is a superior law.
implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial
according to some settled course of judicial proceedings . . . .”).
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Id. at 234 (emphasis added). The sole dissenting justice, Chief Justice Holt,
did not disagree with this premise; he disagreed only as to the legal status of
the House of Commons warrant in question. Id. at 236–37 (Holt, C.J.,
dissenting). Thus, the Queen’s Bench was unanimous as to this central
point: Magna Carta’s guarantee of due process did not extrinsically constrain
the legislative process. It required only that legal deprivation be preceded by
lawful process, in keeping with the common law or duly enacted legislation.11
Early American colonists quickly transplanted this deeply rooted
English legal tradition in their own governing documents. Using variations
on the longstanding phrases “law of the land” and “due process of law,” the
colonists brought with them the legal soil of their forebears in their first
charters and declarations of rights.12 The same language carried over into
11
Some fifty years earlier, in another English case, a habeas corpus petitioner
similarly invoked the “29th chapter of Magna Carta” and its statutory complement (42
Edw. 3, c. 3) against the Parliamentary warrant on which he had been arrested, asserting
that he had “been proceeded against not according to the law of the land.” Case of Captain
Streater, 5 How. St. Tr. 366, 374–86 (1653); see also supra n.9 (explaining Magna Carta’s
chapter-numbering conventions). The judge in that case was perhaps even less impressed
with the argument than the Queen’s Bench in Paty’s Case: “[Petitioner’s counsel] says,
The parliament hath not the power to alter the laws. Why, they have the legislative power,
and may alter and order in such sort as they please; they may daily. . . . It is strange a
counsellor should say this.” Captain Streater, 5 How. St. Tr. at 386. “[I]n all justice, an
inferior court cannot controul what the Parliament does. . . . We must submit to the
legislative power . . . .” Id.
12
See, e.g., The New York Charter of Liberties and Privileges ¶ 13 (1683) (“Noe
freeman shall be taken and imprisoned or be disseized of his Freehold or Libertye or Free
Customes or be outlawed or Exiled or any other wayes destroyed nor shall be passed upon
adjudged or condemned But by the Lawfull Judgment of his peers and by the Law of this
province.” (emphasis added)); An Act Declaring What Are the Rights and Priviledges, of
His Majesty’s Subjects, Inhabiting Within this Province of East New Jersey (1698) (using
both “laws of this Province” and “due course of law”).
Quite recently, two scholars have suggested that three interrelated legal phrases
stemming from Magna Carta and six subsequent Edwardian statutes—“law of the land,”
“course of law,” and “due process of law”—were in use during the Founding era and
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state constitutions,13 the Northwest Ordinance,14 and eventually, the Fifth
Amendment to the federal Constitution.15
generally understood to mean somewhat different things: “law of the land” referred most
broadly to the English positive law; “course of law” meant legal procedure; and “due
process of law” referred rather narrowly to the appropriate “process”—that is, “‘writs or
precepts that go forth’ from a court” by which “[g]overnment officials . . . issue orders,
impose obligations, or grant rights.” See Crema & Solum, supra, at 461–525; id. at 465
(quoting Process, 2 Timothy Cunningham, A New and Complete Law-Dictionary (London,
1765)).
13
See, e.g., Md. Const. of 1776, Declaration and Charter of Rights, art. 21 (“That
no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or
privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty,
or property, but by the lawful judgment of his peers, or by the law of the land.”); N.Y.
Const. of 1777, art. XIII (“[N]o member of this state shall be disfranchised, or deprived of
any the rights or privileges secured to the subjects of this State by this constitution, unless
by the law of the land, or the judgment of his peers.”). Some states tailored these
provisions more narrowly to the criminal context, e.g., Pa. Const. of 1776, Declaration of
Rights, art. IX (“That in all prosecutions for criminal offences, a man . . . [cannot] be justly
deprived of his liberty except by the laws of the land, or the judgment of his peers.”), while
others phrased the provisions to provide protections for criminal defendants but did not
expressly cabin the scope to only criminal defendants, e.g., Mass. Const. pt. I, art. XII
(1870) (“[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property,
immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life,
liberty, or estate, but by the judgment of his peers, or the law of the land.”). See Williams,
supra, at 437–38 & nn.120–22; see also Edward S. Corwin, The Doctrine of Due Process of Law
Before the Civil War, 24 Harv. L. Rev. 366, 370–71 (1911) (arguing that “the phrase ‘law of
the land,’ which is the universal form in [early state] constitutions, [did not] import any
limitation upon legislative power”).
14
Ordinance of 1787: The Northwest Territorial Government, art. II, U.S.C. LV,
LVI (2006) (“No man shall be deprived of his liberty or property but by the judgment of
his peers, or the law of the land . . . .” (emphasis added)).
15
Notes from the constitutional convention or the ratification debates provide little
aid in understanding the Fifth Amendment’s Due Process Clause. See 1 Annals of Cong.
434 (James Madison introducing the amendment), 753–54 (debating other clauses of the
amendment, but not the due process clause). “The immediate inspiration for Madison’s
proposal was most likely Article II of the Northwest Ordinance,” which had a provision
like those adopted in state constitutions and which Congress passed a few years earlier. See
Williams, supra, at 446 n.156 (quoting Ordinance of 1787: The Northwest Territorial
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B.
In light of the text and history behind the Fifth Amendment’s Due
Process Clause, what bearing (if any) did the clause have on federal courts’
exercise of personal jurisdiction or Congress’s ability to expand it? There are
relatively few cases from our nation’s early constitutional history to serve as
waypoints on our interpretive voyage.16 In any event, “[s]howing that
Founding-era due process didn’t limit federal personal jurisdiction is an
exercise in proving a negative.” Stephen E. Sachs, The Unlimited Jurisdiction
of the Federal Courts, 106 Va. L. Rev. 1703, 1710 (2020); see also Elkins v.
United States, 364 U.S. 206, 218 (1960) (“[A]s a practical matter it is never
easy to prove a negative . . . .”). And the majority opinion points us to no
case whatsoever from our nation’s early history to carry its burden in support
of its view. Nor could it: the few relevant cases that we have compellingly
suggest that due process had precious little to do with jurisdiction.
1.
Consider Picquet v. Swan, 19 F. Cas. 609 (C.C.D. Mass. 1828) (No.
11,134). Antonio Picquet, a Frenchman, sued James Swan, an American
expatriate in Paris, in federal court. Id. at 609. Swan never appeared, so
Picquet sought a default judgment. But Justice Joseph Story, riding circuit,
Government, U.S.C. LV, LVI (2006)); see also Crema & Solum, supra, at 506–07 (noting
that New York’s 1788 ratification letter—the only one to request a “due process of law”
guarantee—was likely “the inspiration for James Madison’s decision to include the Due
Process of Law Clause”). The lack of debate during the Constitution’s framing and
ratification is likely due to the fact that ‘due process’ was well understood at the time as
having “a precise technical import” that was, well, beyond debate. See Alexander
Hamilton, New York Assembly. Remarks on an Act for Regulating Elections (Feb. 6,
1787), reprinted in 4 The Papers of Alexander Hamilton 34–37 (ed. Harold C. Syrett 1962).
16
The reason for that, in part, is strict Congressional control over venue for federal
civil suits. See, e.g., Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 79. This necessarily
limited the occasions that could give rise to jurisdictional issues.
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refused to authorize such “upon the ground[] that there ha[d] been no
sufficient service of the process.” Id. at 619. The problem, Justice Story
explained, was that Congress had not authorized extraterritorial process
clearly enough to overcome the “general principle[],” in keeping with the
“law of nations,” “that a court created within and for a particular territory is
bounded in the exercise of its power by the limits of such territory.” Id. at
611, 615.
But Congress could have done so. Indeed, Congress had expressly
authorized more expansive nationwide process in special circumstances, and
having done so, Congress itself evidently acknowledged that it legislated
against a restrictive background rule that constrained a federal court’s
process to its own particular district. Id. at 611 (noting examples). Relying
both on this “understanding of congress” and “on general principles” of
law, Justice Story repudiated a default rule that would permit “an alien, who
has never been within the United States” to be “served with a summons or
other process by any attachment of his property . . . and be bound thereby to
appear and submit to the jurisdiction of [an American federal] court.” Id. at
615.
If there were a moment in the opinion to mention any lurking Fifth
Amendment due process issue, this would have been it.17 Had Justice Story
thought that a constitutional provision—not merely a defeasible background
principle of the law of nations—demanded narrow statutory construction, “it
would have been the simplest thing for him to say so.” See United States v.
Zubaydah, 142 S. Ct. 959, 992 (2022) (Gorsuch, J., dissenting). “Not only
do universal principles of law preclude extraterritorial federal court
17
Sachs, supra, at 1716 (discussing this part of Picquet and noting that if exercising
extraterritorial jurisdiction over foreign defendants violated due process—in addition to
common-law and general principles of justice—then “now was the time to say so”).
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process,” Justice Story might very well have written, “but our own
Constitution’s Fifth Amendment prohibits it as violative of due process of
law.” He wrote no such thing, of course—and this is the dog that did not
bark.18 See id. at 992 (Gorsuch, J., dissenting) (making the same form of
argument based on the “clear implication” of judicial silence)
But Justice Story went even further. He expressly contemplated the
possibility of vast—perhaps unlimited—federal court jurisdiction, provided
that Congress clearly said so: “If congress had prescribed such a[n]
[expansive] rule, the court would certainly be bound to follow it . . . .” Id.
(emphasis added).19 Surely Justice Story would not have said that federal
courts would “certainly” be “bound” to exercise constitutionally
problematic jurisdiction merely upon Congressional say-so. To the contrary,
he would have flagged any extrinsic constitutional limits on federal court
jurisdiction that would have defeated overly expansive Congressional
authorization. After all, whenever an act of Congress and the Constitution
conflict, courts are obviously bound to obey the latter. Marbury v. Madison,
5 U.S. (1 Cranch) 137, 177 (1803).
But again, Justice Story conspicuously said nothing of this sort. And
what he did say strongly suggests the absence of constitutional constraints on
Congress’s ability to authorize sweeping federal court jurisdiction over even
foreign parties residing abroad. In the course of addressing Piquet’s
argument that the Judiciary Act of 1789 posed no barrier to extraterritorial
18
See Sir Arthur Conan Doyle, The Adventure of Silver Blaze, Strand Mag., Dec.
1892, at 645, 656–57, 659 (mystery-solving clue was the “curious incident” of the dog that
“did nothing in the night-time”).
19
See also Piquet, 19 F. Cas. at 613 (“[I]ndependent of some positive provision to the
contrary, no judgment could be rendered in the circuit court against any person, upon whom
process could not be personally served within the district.” (emphasis added)).
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process, Justice Story observed that Picquet relied on an unspoken—and
incorrect—premise: namely, that absent affirmative statutory limitations, the
reach of federal process was unbounded. Piquet, 19 F. Cas. at 613. Justice
Story held the inverse to be true: absent affirmative authorization, the reach
of American courts’ process was limited by “general principles of law.” Id.
at 611, 615.
As Justice Story saw it, the “general principles of law” that gave rise
to the background presumption against extraterritorial process were not a
brooding omnipresence that indefeasibly tied Congress’s hands. Congress
could act to change the background rule. It just had to do so explicitly. Thus,
Justice Story wrote that although “repugnant to the general rights and
sovereignty of other nations” and not an intention to be presumed lightly
from general congressional language, “a subject of England, or France, or
Russia, having a controversy with one of our own citizens, may be summoned
from the other end of the globe to obey our process, and submit to the
judgment of our courts,” if Congress’s intent is “established by irresistible
proof.” Id. at 613. Importantly, Justice Story made no mention of Fifth
Amendment due process.
But there was a different constitutional problem with Picquet’s case.
Picquet, it turns out, had described Swan as being “of the city of Boston, in
the commonwealth of Massachusetts, one of the United States of America,
and a citizen of the said United States.” Id. at 609 (emphasis added). He did
not, however, specify that Swan was “a citizen of Massachusetts, or of any
particular state.” Id. at 616 (emphasis added). And while the Judiciary Act
of 1789 gave circuit courts jurisdiction over cases to which “an alien” like
Piquet “is a party,” 1 Stat. at 78, § 11, Article III of the Constitution “does
not extend the judicial power of the United States to [all cases in which an
alien is a party], but limits it to controversies between citizens of a state, and
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foreign citizens or subjects.” Picquet, 19 F. Cas. at 616 (paraphrasing U.S.
Const. art. III, § 2) (emphasis added).
So, Justice Story pedantically engaged in constitutional avoidance to
dodge this rigidly formalistic Article III problem. He interpreted the
Judiciary Act to mean that “if an alien is one party, a citizen of some
particular state must be the other party.” Id. at 616. Picquet’s writ
technically did not pass muster because Picquet had not (in so many words)
denominated his counterparty, Swan, a “citizen of a state”—a fact necessary
for the court to exercise diversity jurisdiction according to the letter of the
Constitution. If Justice Story was so attuned to this picayune constitutional
peccadillo, could he really have overlooked a looming Fifth Amendment due
process problem?
Justice Story’s failure to make any mention of the Fifth Amendment’s
Due Process Clause would be glaring if Justice Story believed that it
constrained courts’ exercise of personal jurisdiction. But his omission makes
perfect sense if the Clause merely required lawful process in keeping with the
common law or duly enacted legislation.
2.
Picquet’s silence as to due process is telling. And it does not stand
alone. Of the other early cases that we have, none lends support to the view
that a string of Supreme Court cases interpreting the Fourteenth
Amendment from the mid-twentieth century to the present somehow
captured the Fifth Amendment’s original public meaning. Just the opposite.
Other cases both before and after Picquet suggest—in what they do not say—
that Fifth Amendment due process had no bearing on the extent to which
Congress could authorize federal courts to issue process internationally.
A decade before Picquet, Justice Bushrod Washington (President
George Washington’s nephew) already aired much the same reasoning while
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riding circuit in Pennsylvania. In Ex parte Graham, which Justice Story cited
favorably in Picquet, Justice Washington determined that a Philadelphia
merchant was improperly arrested in Pennsylvania on the basis of a Rhode
Island circuit court order. 10 F. Cas. 911, 911, 913 (C.C.E.D. Pa. 1818) (No.
5,657). “In the exercise of a jurisdiction over persons not inhabitants of, or
found within the district where the suit is brought,” he wrote, “there are
difficulties, which, in the opinion of the court, nothing but an act of congress
can remove.” Id. at 913 (emphasis added). And furthermore, he added,
should it be the will of congress to vest in the courts of the
United States an extra-territorial jurisdiction in prize causes,
over persons and things found in a district other than that from
which the process issued, it would seem to be proper, if not
absolutely necessary, at the same time to prescribe the mode of
executing the process.
Id. Congress had the power; it simply had to exercise it. And if there were
any due process limitations on Congress’s power, Justice Washington wholly
neglected to mention them.
A decade after Picquet, the full Supreme Court endorsed Justice
Story’s circuit court opinion. Toland, 37 U.S. (13 Pet.) at 328, 330. In Toland,
Justice Barbour described “the reasoning in [Picquet], generally, as having
great force,” and announced that the Court had “arrived at the same
conclusions” as Justice Story had in Picquet. Id. at 328, 330. Toland, a
Pennsylvanian plaintiff, sued Sprague, an American denizen of Gibraltar, for
stiffing him on a shipment of tobacco and miscellaneous other goods. Id. at
302. As in Picquet, the question raised was “whether the process of foreign
attachment can be properly used by the circuit courts of the United States, in
cases where the defendant is domiciled abroad, and not found within the
district in which the process issues, so that it can be served upon him.” Id.
at 327. Hewing closely to Justice Story’s logic in Picquet, the Court held that
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Congress’s Process Acts, read in light of the Judiciary Act, had not expressly
given federal courts the authority to cause process to be personally served
upon foreign defendants abroad. Id. at 327–30. But, just as in Picquet, the
Court intimated that express, “special authority of law”—“positive
legislation”—could grant federal courts that power and thus expand their
jurisdiction. Id. at 329–30.
Foreign attachment was not invariably doomed for lack of
congressional authorization. In a couple other early nineteenth-century cases
before Picquet, Justice Washington, riding circuit in Pennsylvania, refused to
uphold challenges to foreign attachments against a Cantonese tea merchant
on claims arising out of business conducted in Canton. See Fisher v. Consequa,
9 F. Cas. 120, 121–22 (C.C.D. Pa. 1809) (No. 4,816) (finding “no ground to
dissolve [a foreign] attachment,” as authorized by a colonial Pennsylvanian
law, because that law “has received in practice a liberal construction, so as to
embrace debts contracted in foreign countries, by persons who never did
reside here, and who, of course, could not properly be said to absent
themselves; and which debts, neither by the terms of the contract, nor by the
removal of the debtor hither, could be said to be owing here”); id. at 121(noting that the state law providing for foreign attachment was a “remedial
law” that “ought . . . to be so extended as to remove the mischief [of
absconding foreign debtors], and to advance the remedy” for the “injury of
the inhabitants of Pennsylvania”); Willings v. Consequa, 30 F. Cas. 52, 52–55
(C.C.D. Pa. 1815) (No. 17,766) (failing to mention any jurisdictional issue
with a series of suits brought by American merchants against a Cantonese
merchant on parole contracts “made at Canton” for the delivery of tea to
Amsterdam). Perhaps these cases would have come down differently in light
of Picquet and Toland. But, for our purposes, the key thing to notice is that
neither opinion so much as hints at a constitutional due process problem.
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From this brief survey of nineteenth-century case law, a couple of
things are reasonably clear: First, so long as a statute or rule provides a means
of serving process on civil defendants—even defendants halfway across the
globe—a federal court could and should exercise jurisdiction, despite
offending the law of nations. Second, so long as Congress expressly
authorized such expansive process, Fifth Amendment due process does not
impose constitutional limits on federal courts’ exercise of personal
jurisdiction. Just as Magna Carta’s per legem terrae clause did not tie
Parliament’s hands in Paty’s case, early American cases show—by what they
omit—that the Fifth Amendment’s Due Process Clause does not restrict
Congress’s ability to prescribe, by law, the extent to which federal courts may
issue process and thereby acquire personal jurisdiction over even foreign
defendants a world away.
C.
The majority opinion hopscotches right over all this history, leaping
from Runnymede in 1215 A.D. straight to Washington, D.C. in 1945. Ante at
14–15. It turns out, as we have seen, that a good bit happened in the
intervening seven centuries that is helpful to discerning what the Fifth
Amendment’s Due Process Clause, as originally understood, had to say
about personal jurisdiction. Supra sections II.A–B. But on the majority
opinion’s abridged telling of the story, “the Great Charter of individual
liberty, Magna Carta” gave rise to “due process of law,” and (seven
centuries later), International Shoe and its progeny suddenly elucidated how
due process protects individual liberty vis-à-vis personal jurisdiction.20 Ante
20
I agree, of course, with the majority opinion that ‘due process of law’ protects
individual liberty. Ante at 14–17. But so does federalism. See, e.g., Planned Parenthood Gulf
Coast, Inc. v. Phillips, 24 F.4th 442, 450 (5th Cir. 2022) (“Federalism recognizes our dual
sovereignties—the states and the federal government—and ‘secures to citizens the
liberties that derive from the diffusion of sovereign power.’” (quoting Shelby County v.
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at 14–15. As the majority opinion would have it, International Shoe et al.—an
extensive line of Fourteenth Amendment case law—apply equally to Fifth
Amendment due process, because both “Due Process Clauses use the same
language and guarantee individual liberty in the same way.” Ante at 17.
This is anachronism.21 Case law applying the Fourteenth Amendment
construes a different text directed at a different audience, and which was
written at a different time in our history and, accordingly, under different
circumstances. To imbue the older Fifth Amendment with newer glosses on
Holder, 570 U.S. 529, 543 (2013))); Williams ex rel. J.E. v. Reeves, 981 F.3d 437, 439 (5th
Cir. 2020) (Jones, J., dissenting) (“Federalism, the principle of dual sovereignties, is a
bedrock principle of our Founding and a bulwark of individual liberty because it diffuses
the exercise of power by governments.”). And so does the separation of powers. See Bond
v. United States, 564 U.S. 211, 222 (2011) (“The structural principles secured by the
separation of powers protect the individual as well.”). Indeed, our entire system of
government was designed to promote ordered liberty. Yet it is equally clear that not every
safeguard of our liberty comes in the form of an inflexible right against the state.
Federalism, for instance, protects individual liberty structurally by preventing dangerous
concentrations of power. Among its many other functions, Fifth Amendment due process
likewise protects liberty by guaranteeing that deprivations thereof only occur pursuant to
the law of the land—which includes statutes and rules that define and delimit federal
courts’ jurisdictional reach. Cf. Sachs, Pennoyer Was Right, supra, at 1314 (“[D]ue process
requires jurisdiction, full stop[] . . . . To the extent that Congress has enumerated power to
determine [federal courts’ jurisdiction], the Due Process Clauses won’t stand in the
way.”); id.at 1288 (explaining that because (1) “[d]ue process . . . forbid[s] deprivations of
liberty or property without the lawful judgment of a properly authorized court,” and (2) “a
court lacking in personal jurisdiction isn’t properly authorized [and] can’t issue a lawful
judgment,” therefore, (3) an unlawful judgment from a court lacking personal jurisdiction
constitutes a due process violation).
21
It also begs the question. The Fifth Amendment only protects individual liberty
in the same way as the Fourteenth Amendment if we apply the same precedents from the
Fourteenth Amendment context in the Fifth Amendment context—which is precisely the
conclusion that the statement is supposed to explain. See ante at 17 (“Because the Due
Process Clauses use the same language and guarantee individual liberty in the same way, it
makes sense that the standards developed in the Fourteenth Amendment context must
govern under the Fifth Amendment.”).
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the more recent Fourteenth Amendment is to put new wine in an old
wineskin.22
1.
The Fourteenth Amendment was drafted more than seventy-five
years after Fifth Amendment, and under quite different historical
circumstances. As already discussed, recent originalist scholarship indicates
that the phrase “due process of law” underwent substantial linguistic drift
over the course of the nineteenth century. See Crema & Solum, supra, at
509–25; supra section II.A & n.8. In 1791, the phrase bore a rather technical
legal meaning: namely, service of the proper writ—what we call “service of
process” today. But by 1868, “due process of law” had come to refer to
procedural fairness more generally. For this reason, Supreme Court
precedents interpreting “due process of law” as it was used in 1868 are not
dispositive of the phrase’s usage in the late eighteenth century.
Still, even if we were to assume arguendo that the Fifth and Fourteenth
Amendment Due Process Clauses share identical semantic content, there
remain deeper structural state–federal differences that significantly affect the
clauses’ legal effect.23 International Shoe and its progeny are concerned not
only with due process generally, but also with principles of interstate
22
See Crema & Solum, supra, at 528 (stating that it is most consistent with public
meaning originalism to hold the view that “the meaning of the two Clauses are independent
of one another” and rejecting the reverse-incorporation view that “[r]atification of the
Fourteenth Amendment implicitly amended the earlier Fifth Amendment Due Process of
Law Clause”).
23
Cf. Xitronix Corp. v. KLA-Tencor Corp., 916 F.3d 429, 442–43 (5th Cir. 2019)
(Higginson, J.) (observing that although “the Supreme Court prefers to construe like text
alike[,] [i]t has refused to give identical terms the same meaning . . . when contexts and
considerations differ,” and holding that the lack of “federalism concerns” present in a
different context justified a different interpretation of the same statutory language).
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federalism. And principles of interstate federalism are irrelevant in the Fifth
Amendment context of federal court personal jurisdiction.24
Federalism concerns animate the Supreme Court’s jurisprudence on
the jurisdictional limitations of the Fourteenth Amendment’s Due Process
Clause. See Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017,
1030 (2021) (noting that “principles of ‘interstate federalism’” are central
to the Court’s analysis of Fourteenth Amendment due process limitations on
personal jurisdiction (quoting World-Wide Volkswagen, 444 U.S. at 293)).25
To prevent competing assertions of state court jurisdiction within the federal
system, the Supreme Court has fashioned rules under the Fourteenth
Amendment to limit state courts to the exercise of general personal
jurisdiction over corporate defendants that are incorporated in the state,
house their “nerve center” there, or are otherwise “essentially at home” in
the state.
These federalism concerns are entirely absent in the Fifth
Amendment due process context.26 Since federal law applies uniformly and
24
The textual differences between the amendments are also reflective of these
deeper structural state–federal differences between the clauses’ respective applications.
Contrast U.S. Const. amend. XIV, § 1 (“[N]or shall any State deprive any person of life,
liberty, or property, without due process of law[.]” (emphasis added)), with U.S. Const.
amend. V (“No person shall be . . . deprived of life, liberty, or property, without due
process of law[.]”).
25
See also, e.g., Bristol-Myers, 137 S. Ct. at 1780 (“[R]estrictions on personal
jurisdiction ‘are more than a guarantee of immunity from inconvenient or distant litigation.
They are a consequence of territorial limitations on the power of the respective States.’”
(quoting Hanson v. Denckla, 357 U.S. 235, 251 (1958))); id. at 1788 (Sotomayor, J.,
dissenting) (“The majority’s animating concern, in the end, appears to be federalism
. . . .”).
26
The United States, intervening in a case pending in the Second Circuit, very
recently put it this way:
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what matters, ultimately, is the sovereignty of the United States, federal
courts’ personal jurisdiction can properly be much more expansive. As the
United States Solicitor General recently argued before the Supreme Court,
“the United States’ constitutional powers and special competence in matters
of foreign affairs and international commerce, in contrast to the limited and
geographically cabined sovereignty of each of the several States, would
permit the exercise of federal judicial power in ways that have no analogue at
the state level.” Brief of the United States as Amicus Curiae at 32, Ford Motor
Co., 141 S. Ct. 1017 (Nos. 19-368, 19-369), 2020 WL 1478612.
This all makes sense as a matter of first principles. Personal
jurisdiction is anchored to the concept of sovereignty. Cf. McIntyre, 564 U.S.
at 883–84 (“[J]urisdiction is in the first instance a question of authority rather
than fairness[.]”). A court has personal jurisdiction over a defendant when
the state, of which the court is an instrumentality, has sovereign power over
a defendant, either generally or with respect to a particular transaction or
occurrence. The Constitution’s Due Process Clauses come into play
indirectly. For a defendant to be “deprived of life, liberty, or property” with
[F]ederalism concerns do not apply to the federal government. Unlike a
state, which is subject to “territorial limitations” on its power, World-
Wide Volkswagen, 444 U.S. at 294, the United States has authority “to
enforce its laws beyond [its] territorial boundaries,” EEOC v. Arabian
American Oil Co., 499 U.S. 244, 248 (1991), superseded by statute on other
grounds. And rather than the limited and mutually exclusive sovereignty of
the several states, the federal government’s sovereignty includes authority
over foreign commerce and foreign affairs. Indeed, the United States’
“powers of external sovereignty” and its ability to conduct its
relationships with foreign actors are grounded in the United States’ status
in international law as an independent state. United States v. Curtiss-
Wright Export Corp., 299 U.S. 304, 318 (1936).
Brief of Intervenor–Appellant United States at 35–40, Fuld v. Palestinian Liberation
Org. (2d Cir. June 24, 2022) (Nos. 22-76, 22-496).
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the constitutionally required “due process of law,” a properly authorized
court must have rendered a lawful judgment in the proper manner. See
Sachs, Pennoyer was Right, supra, at 1314; Sachs, Unlimited Jurisdiction,
supra, at 1726–27. A court is only properly authorized when it is enabled to
partake of the state’s sovereign power over the defendant. Without
authority, the court’s judgment is “waste paper,” and execution of the
judgment would be unconstitutional for lack of due process. See Voorhees v.
Jackson, 35 U.S. (10 Pet.) 449, 469, 475 (1836).
Domestically, Fourteenth Amendment due process thus prevents
states from unjustifiably trenching on others’ sovereign prerogative to have
their courts hear cases concerning defendants residing or doing business
within state borders. See Pennoyer v. Neff, 95 U.S. 714, 732–33 (1877).
Applicable to state action, and here, interstate action, the Fourteenth
Amendment necessarily carries federalist cargo.
But in the international sphere, our Constitution dictates no particular
ordering of relations with other countries. Rather, the Constitution assigns
that job to Congress and the President. See U.S. Const. art. I, § 8, cl. 3
(congressional power to “regulate Commerce with foreign Nations”); id. art.
I, § 8, cl. 10 (congressional power to “define and punish Piracies and Felonies
committed on the high Seas, and Offenses against the Law of Nations”); id.
art. I, § 8, cl. 11 (congressional power to “declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Captures on Land and
Water”); id. art. II, § 2, cl. 1 (presidential designation as “Commander in
Chief”); id. art. II, § 2, cl. 2 (presidential power “to make Treaties”). The
Fifth Amendment, as originally understood, imposes no extrinsic constraint
on our coordinate branches’ exercise of their prerogatives to conduct foreign
relations in and through federal courts. Congress can open the federal
courthouse door to lawsuits against foreign defendants. The Executive can
prosecute or sue foreign actors in federal courts. Because the Fifth
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Amendment, unlike the Fourteenth Amendment, applies to federal courts
and is not shaped by principles of federalism, it poses no barrier.
2.
Dismissing the interstate federalism concerns that animate much of
Fourteenth Amendment personal jurisdiction jurisprudence, the majority
opinion leans heavily on the “individual liberty interest[s]” protected by due
process to justify extending Fourteenth Amendment due process case law
into the Fifth Amendment to protect a foreign corporation. Ante at 14–17.
This amounts to an improper, unhesitating expansion of substantive due
process.
As a preliminary matter, it is not entirely clear whether foreign
defendants abroad have due process rights in the first place. On the one hand,
the Supreme Court recently emphasized that “it is long settled as a matter of
American constitutional law that foreign citizens outside U.S. territory do
not possess rights under the U.S. Constitution.” Agency for Int’l Dev. v. All.
for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 (2020) (citing, inter alia,
Boumediene v. Bush, 553 U.S. 723, 770–71 (2008), United States v. Verdugo-
Urquidez, 494 U.S. 259, 265–75 (1990), and Johnson v. Eisentrager, 339 U.S.
763, 784 (1950) (opinion of Jackson, J.)).27 On the other hand, as the majority
opinion correctly notes, a slew of Fourteenth Amendment personal
jurisdiction cases has, without question, accepted the premise that foreign
corporations have due process rights as to personal jurisdiction. Ante at 7–8.
27
See also Hernandez v. United States, 785 F.3d 117, 126 (5th Cir. 2015) (Jones, J.,
concurring) (“The Supreme Court [has] held . . . and has reiterated . . . that as a general
matter aliens outside the sovereign territory of the United States are not entitled to Fifth
Amendment rights.” (citing Johnson, 339 U.S. at 782–85)); Castro v. Cabrera, 742 F.3d 595,
599 n.5 (5th Cir. 2014) (noting that Johnson “reject[ed] extraterritorial application of the
Fifth Amendment”).
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Absent Supreme Court resolution of this perplexing problem, the Supreme
Court’s Fourteenth Amendment cases suggest that, as to personal
jurisdiction, foreign actors abroad do have rights under the United States
Constitution, anomalous as that may be. See, e.g., Daimler, 571 U.S. at 139–
41; Asahi, 480 U.S. at 114–15.
For better or worse, the words “due process of law” as used in the
Fourteenth Amendment have always had, or else have since acquired, a
substantive aspect that was never borne by the words per legem terrae in
Magna Carta or “due process of law” as they were used at the Founding. See
Williams, supra, at 428–34 (tracing the history of “due process” to explain
how the Fourteenth Amendment’s Due Process Clause is substantive,
whereas the Fifth Amendment’s is not); United States v. Vaello Madero, 142
S. Ct. 1539, 1535 (2022) (Thomas, J., concurring) (“[T]he Fifth
Amendment’s text and history provide little support for modern substantive
due process doctrine.”).28 The liberty interest that the majority opinion
expounds is substantive in character. Ante at 8, 24 (concluding that non-
resident, non-consenting defendants have a liberty-based right of immunity
from suit in United States federal court). See generally Wendy Collins
Perdue, Sin, Scandal, and Substantive Due Process: Personal Jurisdiction and
Pennoyer Reconsidered, 62 Wash. L. Rev. 479 (1987) (parsing the nature of
the liberty interest at stake in the personal jurisdiction analysis under the
Fourteenth Amendment and concluding that it is “a substantive due process
28
See also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847 (1992) (“[T]he
guaranties of due process, though having their roots in Magna Carta’s ‘per legem terrae’ and
considered as procedural safeguards ‘against executive usurpation and tyranny,’ have in
this country become ‘bulwarks also against arbitrary legislation.’” (quoting Poe v. Ullman,
367 U.S. 497, 541 (1961) (Harlan, J., dissenting))).
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right”).29 While the Supreme Court has instructed us that the Fourteenth
Amendment protects substantive personal-jurisdiction rights, it has not done
so with the Fifth Amendment, and extending such a right here does not
comport with the Fifth Amendment’s meaning at the Founding.
Of course, the Supreme Court has ascribed to the Fifth Amendment
Due Process Clause a “substantive” facet alongside the Fourteenth
Amendment. See, e.g., United States v. Salerno, 481 U.S. 739, 746 (1987)
(acknowledging “[s]o-called ‘substantive due process’” under the Fifth
Amendment); Wright v. United States, 302 U.S. 583, 607 (1938) (holding that
“[t]he phrase ‘due process’ in the Fifth and Fourteenth Amendments has
long since been expanded beyond its literal meaning of due procedure”). But
the Supreme Court has also limited the expansion of “substantive due
process” in recent decades. See Collins v. City of Harker Heights, 503 U.S.
115, 125 (1992) (expressing “reluctan[ce] to expand the concept of
substantive due process because guideposts for responsible decisionmaking
in this unchartered area are scarce and open-ended”). If, as the majority
opinion urges, we are to treat Fourteenth Amendment due process
jurisprudence as equally applicable to Fifth Amendment due process, we
ought to consider its limits, too.
In the seminal case of Washington v. Glucksberg, the Court outlined
two limiting factors to assess when faced with a novel substantive due process
claim: First, the “fundamental right” asserted must be, “objectively, ‘deeply
rooted in this Nation’s history and tradition.’” 521 U.S. 702, 720–21 (1997)
(quoting Moore v. City of E. Cleveland, 431 U.S. 494, 503 (1977)). And second,
29
See also Jay Conison, What Does Due Process Have to Do with Jurisdiction?, 46
Rutgers L. Rev. 1071, 1158, 1192–99, 1209 (1994) (“The constitutional law of personal
jurisdiction is a hodge-podge of nineteenth-century natural justice and natural rights, early
twentieth-century substantive due process, and general law.”).
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the “asserted fundamental liberty interest” must be amenable to a “careful
description.” Id. at 527 (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).
We have adopted and applied this framework. See Malagon de Fuentes v.
Gonzales, 462 F.3d 498, 505 (5th Cir. 2006) (“To establish a substantive due
process violation, a plaintiff must first both carefully describe that right and
establish it as ‘deeply rooted in this Nation’s history and tradition.’”
(quoting Glucksberg, 521 U.S. at 720–21)); see also Cantu-Delgadillo v. Holder,
584 F.3d 682, 687 (5th Cir. 2009).
In considering whether to introduce into Fifth Amendment Due
Process Clause jurisprudence a novel substantive due process right to
immunity from personal jurisdiction in federal court, we ought to follow the
Glucksberg framework. And that framework clearly precludes the majority
opinion’s expansion of substantive due process by “reverse incorporating”
Fourteenth Amendment case law into the Fifth Amendment.
Taking the second factor first, the right that the majority opinion
asserts in the name of individual liberty is not amenable to a clear and limited
description. The Supreme Court itself has wavered in its articulation of the
liberty interest at stake in its Fourteenth Amendment cases and has
frequently discussed the issue in terms of “interstate federalism.”30 Case
30
Compare, e.g., Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S.
694, 702 (1982) (“The personal jurisdiction requirement recognizes and protects an
individual liberty interest.”), with Hanson, 357 U.S. at 251 (noting that limits on personal
jurisdiction are ultimately a “consequence of territorial limitations on the power of the
respective States”), Bristol-Myers, 137 S. Ct. at 1780 (same), and World–Wide Volkswagen,
444 U.S. at 293 (“The sovereignty of each State . . . implie[s] a limitation on the
sovereignty of all its sister States . . . .”). Scholars too have puzzled over the exact nature
of the right that the Court’s twentieth-century Fourteenth Amendment jurisprudence has
wrought. See, e.g., Perdue, Sin, Scandal, and Substantive Due Process, supra, at 511–19;
Conison, supra, at 1187–1203.
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law in this area is highly fact-specific,31 and the Supreme Court itself has
recognized that delimiting defendants’ “liberty interest[s]” vis-à-vis
personal jurisdiction “necessarily requires determinations ‘in which few
answers will be written in black and white. The greys are dominant and even
among them the shades are innumerable.’” Burger King Corp. v. Rudzewicz,
471 U.S. 462, 471, 486 n.29 (1985) (quoting Kulko v. Super. Ct. of Cal., 436
U.S. 84, 92 (1978)). It can hardly be said, therefore, that the right of
immunity that the majority opinion inserts into the Fifth Amendment is
clearly delimited.
The bigger problem for the majority opinion, though, is Glucksberg’s
central requirement that newly posited substantive due process rights be
objectively deeply rooted in our Nation’s history and traditions. 521 U.S. at720–21. As already discussed at length, supra sections II.A–B, longstanding
English and antebellum American legal history show that “due process of
law” was not considered to impose substantive limits on the legislative
body’s ability to expand or contract courts’ jurisdiction. Rather, centuries of
tradition appear to support the view that even the most “repugnant” exercise
of jurisdiction over defendants halfway across the globe could very well be
authorized by Congress. See Picquet, 19 F. Cas. at 613. While there is, of
course, a considerable tradition rooted in natural law and the law of nations
against expansive extraterritorial exercises of jurisdiction, it is not the role of
31
See, e.g., Polythane Sys. v. Marina Ventures Int’l, Ltd., 993 F.2d 1201, 1207 (5th
Cir. 1993) (“Determinations regarding the exercise of personal jurisdiction over non-
resident defendants must be made on a case-by-case basis.”); Walker v. Newgent, 583 F.2d
163, 168 (5th Cir. 1978) (“Of necessity, inquiries into whether the exercise of personal
jurisdiction is permissible in a particular case are sensitive to the facts of each case.”);
accord uBID, Inc. v. GoDaddy Group, Inc., 623 F.3d 421, 433 (7th Cir. 2010) (“[T]his is a
field of law where the Supreme Court has repeatedly refused opportunities to draw such
bright lines.”).
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the federal judiciary to constitutionalize such under the auspices of ‘due
process.’32
3.
Emphasizing defendants’ “individual liberty” interests, ante at 14–17,
raises another big problem for the majority opinion: Both historically and to
the present day, foreign criminal defendants have been subjected to federal
courts’ jurisdiction for crimes committed abroad. This, despite the fact that
criminal defendants, whose liberty—and very lives—are on the line, are
always entitled to the very strictest due process rights. See infra section
IV.D.1. The majority opinion wholly neglects to explain why it elevates
foreign civil defendants above criminal defendants for special due-process
solicitude in this context.
Since at least the seventeenth century, English and early American
jurisprudence has expressly allowed criminal prosecutions of foreign actors
for foreign conduct in domestic courts. In the 1820 case of United States v.
Smith, Justice Story considered English criminal prosecutions from the late
1690s and early 1700s to be “entitled to great consideration” because of the
“universal approbation of the legal principles asserted by them.” 18 U.S. (5
Wheat.) 153, 177–80 n.h (1820) (citing Rex v. Dawson, 13 How. St. Tr. 451,
454–55 (1696), and Rex v. Kidd, 14 How. St. Tr. 123, 147, 180–83 (1701)).
Notably, he found it “worthy of remark, that in none of these indictments was
there any averment that the prisoners were British subjects; and most of them
were for piracies committed on foreign subjects and vessels.” Id. (emphases
32
Contra Lea Brilmayer, Jurisdictional Due Process and Political Theory, 39 U. Fla.
L. Rev. 293, 313 (1987) (noting the dubious judicial “legitimacy of relying upon natural law
arguments” to support limits on personal jurisdiction, but suggesting that they might
instead, “with some plausibility, be attributed to the constitutional text,” which is “after
all, . . . rather vague”).
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added).33 In other words, there was no jurisdictional problem with
prosecuting possible foreigners in domestic court for foreign conduct that
injured other foreigners. Even when nothing about the criminal, the crime,
or the victim has anything to do with the forum, English courts could hear
and adjudicate the prosecutions. Due process interposed no jurisdictional
barrier.
In contemporary due process jurisprudence, we and our sister circuits
merely require that when the United States prosecutes a non-citizen for
foreign conduct there must be “a sufficient nexus between the conduct
condemned and the United States” such that it “would not be arbitrary or
fundamentally unfair” for our courts to enter judgment against the
defendant. See United States v. Rojas, 812 F.3d 382, 393 (5th Cir. 2016)
(quoting United States v. Lawrence, 727 F.3d 386, 396 (5th Cir. 2013));
Restatement (Fourth) of Foreign Relations Law § 403(c) & n.4 (2018) (citing
sister circuit cases). And “a jurisdictional nexus exists when the aim of that
activity”—or perhaps merely its effect—“is to cause harm inside the United
States or to U.S. citizens or interests.” See id. (quoting United States v. Al
Kassar, 660 F.3d 108 (2d Cir. 2011)); United States v. Murillo, 826 F.3d 152,
157 (4th Cir. 2016) (“[I]t is not arbitrary to prosecute a defendant in the
United States if his ‘actions affected significant American interests’—even
if the defendant did not mean to affect those interests.” (quoting United
States v. Brehm, 691 F.3d 547, 552–53 (4th Cir. 2012))).
33
Indeed, in the cited 1696 English case of Rex v. Dawson, the jury instructions of
the presiding Sir Charles Hedges, the Judge of the High Court of Admiralty, indicated that
the extraterritorial piracy prosecution was “cognizable of th[at] Court” because “[t]he
King of England hath not only an empire and sovereignty over the British seas” for “the
punishment of piracy,” but also “an undoubted jurisdiction and power” in “the most
remote parts of the world.” 13 How. St. Tr. at 455.
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So, even though due process today places more limits perhaps on
federal courts’ criminal jurisdiction than there were historically, this “more
expansive due process test in criminal cases” is hardly as constraining as the
test that the majority opinion today demands in the civil context. Waldman
v. Palestine Liberation Org., 835 F.3d 317, 340 (2d Cir. 2016). Thus, our sister
circuits have unhesitatingly affirmed convictions in federal district court of
Somali pirates for murders committed some thirty nautical miles off the
Somali coast, a Spanish illegal weapons trafficker for deals brokered in Spain
and Beirut, a Colombian taxicab driver for murdering an undercover
American DEA special agent in Bogotá, and a leader of an extensive
international criminal drug enterprise for funding terrorism—among others.
See, e.g., United States v. Beyle, 782 F.3d 159, 165–69 (4th Cir. 2015) (opinion
of Wilkinson, J.); Al Kassar, 660 F.3d at 117–20 (opinion of Jacobs, C.J.);
Murillo, 826 F.3d at 153–54, 156–57; In re Sealed Case, 936 F.3d 582, 593–94
(D.C. Cir. 2019) (opinion of Griffith, J.).34
The bottom line is this: We can prosecute foreign pirates, arms
traffickers, murderers, and terrorists in our federal courts for criminal
conduct abroad; we can condemn them to life imprisonment; we can
sentence them even to death; but we cannot, on the majority opinion’s
reasoning, subject them to civil suit in United States federal courts without
violating due process unless they are “at home” here (or the lawsuit arises
out of their purposeful “minimum contacts” with the United States). It is
nonsense on stilts to hold that allowing a civil lawsuit against a foreign
defendant for foreign conduct violates due process but that a criminal
prosecution against the same defendant for the same foreign conduct does not.
34
See also, e.g., United States v. Shibin, 722 F.3d 233 (4th Cir. 2013); United States
v. Dire, 680 F.3d 446 (4th Cir. 2012); Brehm, 691 F.3d at 552–54; United States v. Ali, 718
F.3d 929, 944–47 (D.C. Cir. 2013).
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The Fifth Amendment does not compel us to pronounce such absurdity. As
originally and subsequently understood, its Due Process Clause imposes no
stricter limit on personal jurisdiction in civil cases than it does in criminal
prosecutions; indeed, it imposes no limit on Congress’s ability to extend the
range of federal courts’ civil process. See supra sections II.A–B.
D.
That the Fifth Amendment’s Due Process Clause, as originally
understood, imposes no direct constraint on Congress’s ability to demarcate
the extent of federal courts’ power is not necessarily to say that it imposes no
constraints whatsoever. Indeed, the Due Process Clause secures individual
liberty not just by requiring that “courts have jurisdiction, period.” Sachs,
Unlimited Jurisdiction, supra, at 1712 (emphasis removed); supra n.20. In my
view, it also ensures the rule of law more broadly by guarding against
arbitrary, capricious, and ad hoc government action.
In the context of personal jurisdiction, arbitrary modes of process or
nefarious allocations of judicial authority designed to frustrate notice and fair
hearing would certainly violate the Due Process Clause. See Sachs, Unlimited
Jurisdiction, supra, at 1740. Take the fair-hearing requirement, for example.
“Congress could violate the due process clause by requiring all federal cases
to be tried in Adak (the westernmost settlement in the Aleutian Islands),”
because the arbitrarily distant forum “make[s] the offer of adjudication a
mirage.” Bd. of Trs., Sheet Metal Workers’ Nat. Pension Fund v. Elite Erectors,
Inc., 212 F.3d 1031, 1036 (7th Cir. 2000) (Easterbrook, J.).
Now consider the fair notice requirement. Imagine a hypothetical
Rule 4(k)(3), which says: “Constructive service of process by posting a
complaint and summons in pig Latin on the Court-House door on the island
of Tobago establishes personal jurisdiction over any named defendant in any
federal district court.” This too would obviously founder on Fifth
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Amendment due process grounds. See Potter v. Castle Const. Co., 355 F.2d
212, 215 (5th Cir. 1966) (“[D]ue process under the Fifth Amendment . . .
[requires] ‘notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.’” (quoting Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306, 314–315 (1950))).
III.
What does the original understanding of the Fifth Amendment’s Due
Process Clause mean for these cases before us? The answer is really quite
simple: the plaintiffs’ cases should go forward. Because the Fifth
Amendment’s Due Process Clause, as originally understood, poses no
extrinsic limit on Congress’s ability to authorize expansive personal
jurisdiction in federal courts, the district court had personal jurisdiction over
NYK pursuant to Rule 4(k)(2).35
The majority opinion instead holds that the Fifth Amendment
protects corporate defendant NYK against the “concrete burden of
‘litigating in a distant or inconvenient forum’ and the abstract burden of
‘submitting to the coercive power of a [forum] that may have little legitimate
interest in the claims in question.” Ante at 15 (quoting Fourteenth
Amendment cases World-Wide Volkswagen, 444 U.S. at 291, and Bristol-
Myers, 137 S. Ct. at 1781). Even if, arguendo, we were to accept as true the
existence of these substantive due process rights, in what way does litigating
35
Incidentally, the majority opinion quotes with approval the D.C. Circuit’s
suggestion that “[a]pplying consistent personal-jurisdiction standards under the Fifth and
Fourteenth amendments is . . . easier to administer.” Ante at 20–21 (quoting Livnat v.
Palestinian Auth., 851 F.3d 45, 55–56 (D.C. Cir. 2017)). Easier still, I would suggest, is
simply applying the Fifth Amendment as originally understood.
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in the United States burden NYK? Put another way, how has NYK’s liberty
actually been impinged?
Recall that NYK is a massive multinational corporation—one of the
largest shipping and logistics companies in the world. And like any modern
multinational conglomerate, NYK is the consummate cosmopolitan: the
world is its home. Although formally headquartered in Japan, NYK is
perfectly at home here in the United States.36
NYK is no stranger to our shores: Its ships regularly call on at least
thirty United States ports,37 averaging about 1,500 calls annually—more than
four calls per day. In a highly fragmented market, it ranked tenth in United
States containerized export trade and twelfth in import trade in 2013. Part of
its fleet does nothing but deliver cars to the United States. NYK operates
twenty-seven shipping terminals in United States ports and air-cargo service
at six United States airports. Its employees work at the corporation’s
American subsidiaries. Shares of NYK stock are deposited at the Bank of
New York Mellon and may be purchased by United States investors. All told,
NYK reaps roughly $1.5 billion in annual revenue in North America.
36
The majority opinion correctly cites Daimler to remind us that, under governing
Fourteenth Amendment jurisprudence, the ‘at home’ test is “an inherently comparative
inquiry.” Ante at 26. And so it is. But, as this case shows, this “comparative inquiry,”
which focuses as much on a corporate defendant’s immaterial foreign contacts as on its
contacts with the United States, ultimately means that “too big to fail” multinational
corporations are also “too big for general jurisdiction.” See Daimler, 571 U.S. at 143
(Sotomayor, J., concurring in the judgment); cf. id. at 158 (“[This] proportionality
approach will treat small businesses unfairly in comparison to national and multinational
conglomerates. Whereas a larger company will often be immunized from general
jurisdiction in a State on account of its extensive contacts outside the forum, a small
business will not be.”).
37
The record indicates that NYK ships called on forty-one separate United States
ports located along the east coast, west coast, and Gulf of Mexico between March 2019 and
February 2020 alone.
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In the course of doing business here, NYK has frequently availed itself
of the American legal system. The corporation has brought at least seventy-
eight lawsuits in federal court since 1993 (almost three per year), thus
invoking the power of our courts to demand over $22 million in damages.38
38
See Complaint at 3–5, Nippon Yusen Kabushiki Kaisha v. Riverside Navigation
Ltd., No. 3:20-CV-00588 (M.D. La. Sept. 8, 2020), ECF No. 1 (breach of contract suit
seeking over $3 million); Complaint at 45–47, Nippon Yusen Kabushiki Kaisha v. Norfolk S.
Ry. Co., No. 1:20-CV-00858 (D.D.C. Mar. 31, 2020), ECF No. 1 (antitrust violations under
the Sherman Act and Clayton Act); Complaint at 30–32, Nippon Yusen Kabushiki Kaisha v.
BNSF Ry. Co., No. 1:20-CV-00790 (D.D.C. Mar. 23, 2020), ECF No. 1 (antitrust
violations under the Sherman Act and Clayton Act); Complaint at 30–32, Nippon Yusen
Kabushiki Kaisha v. BNSF Ry. Co., No. 2:20-CV-02570 (D.N.J. Mar. 10, 2020), ECF No.
1 (antitrust violations under the Sherman Act and Clayton Act); Complaint at 1–3, Nippon
Yusen Kabushiki Kaisha v. Elite Int’l Corp. L.L.C., No. 1:18-CV-02640 (N.D. Ill. Apr. 12,
2018), ECF No. 1 (commercial maritime suit seeking almost $80,000); Complaint at 1–2,
Nippon Yusen Kabushiki Kaisha v. Pactrans Air & Sea, Inc., No. 1:18-CV-02331 (N.D. Ill.
Mar. 30, 2018), ECF No. 1 (commercial maritime suit seeking almost $30,000); Complaint
at 3–6, Nippon Yusen Kabushiki Kaisha v. GSF Nut Co., LLC, No. 2:17-CV-05614 (C.D.
Cal. July 28, 2017), ECF No. 1 (commercial maritime suit seeking over $20,000);
Complaint at 5–10, Nippon Yusen Kabushiki Kaisha v. Multi-Trans Shipping Agency, Inc., No.
2:16-CV-09523 (C.D. Cal. Dec. 23, 2016), ECF No. 1 (commercial maritime suit seeking
$50,000); Complaint at 4–10, Nippon Yusen Kaisha v. BNSF Ry. Co., No. 2:16-CV-00208
(W.D. Wash. Feb. 11, 2016), ECF No. 1 (commercial dispute seeking damages or
indemnification of up to $1 million); Complaint at 4–7, Nippon Yusen Kaisha v. Global Fresh
Inc., No. 2:15-CV-08907 (C.D. Cal. Nov. 16, 2015), ECF No. 1 (commercial maritime suit
seeking over $35,000); Complaint at 4–7, Nippon Yusen Kaisha v. Best Global Logistics USA,
Inc., No. 2:15-CV-08540 (C.D. Cal. Nov. 2, 2015), ECF No. 1 (commercial maritime suit
seeking over $675,000); Complaint at 2–3, Nippon Yusen Kaisha v. Lincoln Gen. Ins. Co.,
No. 1:15-CV-03231 (S.D.N.Y. Apr. 24, 2015), ECF No. 1 (bond dispute seeking almost
$67,000); Complaint at 4–8, Nippon Yusen Kaisha v. Staudt Int’l Servs. Corp., No. 2:15-CV-
02516 (C.D. Cal. Apr. 6, 2015), ECF No. 1 (commercial maritime suit seeking over
$32,000); Complaint at 3–5, Nippon Yusen Kabushiki Kaisha v. Kraiem, No. 2:15-CV-01364
(D.N.J. Feb. 23, 2015), ECF No. 1 (suit to obtain security against state-court judgment for
up to $100,000); Complaint at 3–6, Nippon Yusen Kaisha v. Wesmex Inc., No. 8:14-CV-
01910 (C.D. Cal. Dec. 3, 2014), ECF No. 1 (commercial maritime suit seeking about
$28,000); Complaint at 3–6, Nippon Yusen Kaisha v. Am. Recreation Prods., No. 2:14-CV-
08428 (C.D. Cal. Oct. 30, 2014), ECF No. 1 (commercial maritime suit seeking around
$27,000); Complaint at 3–6, Nippon Yusen Kaisha v. Pandol Assocs. Marketing, Inc., No.
2:14-CV-08055 (C.D. Cal. Oct. 17, 2014), ECF No. 1 (commercial maritime suit seeking
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about $70,000); Complaint at 3–5, Nippon Yusen Kaisha v. Infinity 8 Int’l Trade LLC, No.
2:14-CV-03419 (C.D. Cal. May 2, 2014), ECF No. 1 (commercial maritime suit seeking
approximately $57,000); Complaint at 2–4, Nippon Yusen Kaisha v. Arch Ins. Co., No. 1:14-
CV-01369 (S.D.N.Y. Feb. 28, 2014), ECF No. 2 (bond dispute seeking around $75,000);
Complaint at 1–2, Nippon Yusen Kaisha v. Latvian Am. Shipping Line Inc., No. 1:13-CV-
04592 (S.D.N.Y. July 2, 2013), ECF No. 1 (breach of contract suit seeking almost $25,000);
Complaint at 3–4, Nippon Yusen Kaisha v. Millenium Plus, Inc., No. 2:13-CV-03029 (C.D.
Cal. Apr. 30, 2013), ECF No. 1 (commercial maritime suit seeking about $32,000);
Complaint at 4–6, Nippon Yusen Kaisha v. Agape Int’l Shipping, No. 2:12-CV-10068 (C.D.
Cal. Nov. 26, 2012), ECF No. 1 (commercial maritime suit seeking about $42,000);
Complaint at 1–2, Nippon Yusen Kaisha v. Shiplane Transport, Inc., No. 2:12-CV-05951
(D.N.J. Sept. 21, 2012), ECF No. 1 (breach of contract suit seeking about $62,000);
Complaint at 4–6, Nippon Yusen Kaisha v. Air Sea Cargo Network, Inc., No. 2:12-CV-07790
(C.D. Cal. Sept. 11, 2012), ECF No. 1 (commercial maritime suit seeking about $17,000);
Complaint at 1–2, Nippon Yusen Kaisha v. FIL Lines USA Inc., No. 1:12-CV-06643
(S.D.N.Y. Aug. 30, 2012), ECF No. 1 (commercial maritime suit seeking almost $48,000);
Complaint at 3–5, Nippon Yusen Kaisha v. Cargo Int’l Forwarders & NVOCC, Inc., No. 2:12-
CV-07266 (C.D. Cal. Aug. 23, 2012), ECF No. 1 (commercial maritime suit seeking about
$22,000); Complaint at 3–5, Nippon Yusen Kaisha v. Sunshine Shipping, Inc., No. 2:12-CV-
05473 (C.D. Cal. June 22, 2012), ECF No. 1 (commercial maritime suit seeking over
$151,000); Complaint at 3–5, Nippon Yusen Kaisha v. TJD Int’l, Inc., No. 2:11-CV-07301
(D.N.J. Dec. 16, 2011), ECF No. 1 (breach of contract suit seeking over $110,000);
Complaint at 1–3, Nippon Yusen Kaisha v. Shiplane Transport, Inc., No. 1:11-CV-06327
(S.D.N.Y. Sept. 9, 2011), ECF No. 1 (indemnity suit seeking $60,000); Complaint at 4–10,
Nippon Yusen Kaisha v. BNSF Ry. Co., No. 2:11-CV-00978 (W.D. Wash. June 10, 2011),
ECF No. 1 (commercial dispute seeking damages or indemnification of around $312,000);
Complaint at 1–2, Nippon Yusen Kaisha v. Summer Breeze Transport, Inc., No. 1:10-CV-
22185 (S.D. Fla. July 2, 2010), ECF No. 1 (commercial maritime dispute seeking almost
$287,000); Complaint at 5–10, Nippon Yusen Kaisha v. BNSF Ry. Co., No. 2:10-CV-03190
(C.D. Cal. Apr. 28, 2010), ECF No. 1 (commercial dispute seeking damages or
indemnification of around $3.16 million); Complaint at 1–2, Nippon Yusen Kaisha v. Wing
Lee Dev., Inc., No. 1:09-CV-09521 (S.D.N.Y. Nov. 16, 2009), ECF No. 1 (commercial
maritime dispute seeking $24,540); Complaint at 1–2, Nippon Yusen Kaisha v. Nick’s Int’l
Shipping, Inc., No. 1:09-CV-09520 (S.D.N.Y. Nov. 16, 2009), ECF No. 1 (commercial
maritime dispute seeking just over $95,000); Complaint at 2, Nippon Yusen Kaisha v.
Triship Glob. Logistics, Inc., No. 1:09-CV-09519 (S.D.N.Y. Nov. 16, 2009), ECF No. 1
(admiralty suit seeking over $38,000); Complaint at 1–2, Nippon Yusen Kaisha v. United
Trans-Trade, Inc., No. 1:09-CV-09518 (S.D.N.Y. Nov. 16, 2009), ECF No. 1 (commercial
maritime dispute seeking around $28,000); Complaint at 4–6, Nippon Yusen Kaisha v. 817
Rolls Knitted Fabric 100% Poly Charmeuse, No. 1:09-CV-05974 (S.D.N.Y. June 30, 2009),
ECF No. 1 (in rem admiralty suit seeking around $85,000); Complaint at 1–3, Nippon Yusen
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Kaisha v. Baltic Auto Shipping, Inc., No. 1:09-CV-05698 (S.D.N.Y. June 22, 2009), ECF
No. 1 (suit seeking around $250,000); Complaint at 3–5, Nippon Yusen Kaisha v. Cargo Int’l
Forwarders & NVOCC, Inc., No. 1:09-CV-05697 (S.D.N.Y June 22, 2009), ECF No. 1
(breach of contract suit seeking about $50,000); Complaint at 1–3, Nippon Yusen Kaisha v.
Green Vanderbilt Corp., No. 1:09-CV-04464 (S.D.N.Y. May 8, 2009), ECF No. 1 (breach
of contract suit seeking around $85,000); Complaint at 1–3, Nippon Yusen Kaisha v. JJB
Trucking & Shipping Servs. Corp., No. 1:09-CV-04444 (S.D.N.Y. May 8, 2009), ECF No. 1
(breach of contract suit seeking around $14,000); Complaint at 1–3, Nippon Yusen Kaisha
v. Fish On Bait Co., LLC, No. 1:09-CV-04443 (S.D.N.Y. May 8, 2009), ECF No. 1 (breach
of contract suit seeking about $100,000); Complaint at 1–3, Nippon Yusen Kaisha v.
Seaspeed Overseas Shipping Co., No. 1:09-CV-04442 (S.D.N.Y. May 8, 2009), ECF No. 1
(breach of contract suit seeking roughly $18,000); Complaint at 1, Nippon Yusen Kaisha v.
Relampago Express Transportes, No. 1:09-CV-04439 (S.D.N.Y. May 8, 2009), ECF No. 1
(breach of contract suit seeking around $35,000); Complaint at 1–3, Nippon Yusen Kaisha
Line v. EMU Lines PVT LTD., No. 1:09-CV-00665 (S.D.N.Y. Jan. 23, 2009), ECF No. 1
(breach of contract suit seeking around $33,000); Complaint at 2–4, Nippon Yusen Kaisha
v. TJD Int’l Inc., No. 2:08-CV-06349 (D.N.J. Dec. 24, 2008), ECF No. 1 (admiralty suit
seeking around $500,000); Complaint at 2–4, Nippon Yusen Kaisha v. Fortune Ocean
Shipping Ltd., No. 1:08-CV-09887 (S.D.N.Y Nov. 14, 2008), ECF No. 1 (commercial
maritime suit seeking about $200,000); Amended Complaint at 2–6, Nippon Yusen Kaisha
v. N. China Shipping Ltd. BHM, No. 1:08-CV-09850 (S.D.N.Y Nov. 13, 2008), ECF No. 3
(commercial maritime suit seeking over $293,000); Complaint at 7–12, NYK Line (N. Am.)
Inc. & Nippon Yusen Kabushiki Kaisha v. New Amera Transit, Inc., 2:08-CV-05505 (D.N.J.
Nov. 6, 2008), ECF No. 1 (breach of contract suit seeking $265,000); Complaint at 1–2,
Nippon Yusen Kaisha v. Plastic Nation Inc., No. 1:08-CV-06736 (S.D.N.Y July 29, 2008),
ECF No. 1 (breach of contract suit seeking over $23,000); Complaint at 2–5, Nippon Yusen
Kaisha v. McDonough Indus. LLC, No. 1:08-CV-03444 (S.D.N.Y Apr. 8, 2008), ECF No. 1
(breach of contract suit seeking attachment of up to $1.3 million); Complaint at 7–12, NYK
Line (N. Am.) Inc. & Nippon Yusen Kabushiki Kaisha v. BNSF Ry. Co., 2:08-CV-00320
(W.D. Wash. Feb. 22, 2008), ECF No. 1 (breach of contract suit seeking at least $130,000);
Complaint at 1–2, Nippon Yusen Kaisha v. Am. Heritage Furniture, Inc., No. 1:08-CV-00488
(S.D.N.Y Jan. 18, 2008), ECF No. 1 (breach of contract suit seeking about $30,000);
Complaint at 1–2, Nippon Yusen Kaisha v. Q.P.S. Materials, Inc., No. 1:08-CV-00487
(S.D.N.Y Jan. 18, 2008), ECF No. 1 (breach of contract suit seeking about $23,000);
Complaint at 1–2, Nippon Yusen Kaisha v. Yanfield Int’l Corp., No. 1:08-CV-00486
(S.D.N.Y Jan. 18, 2008), ECF No. 1 (breach of contract suit seeking about $25,000);
Complaint at 1–2, Nippon Yusen Kaisha v. Distrib. I (USA), Inc., No. 1:08-CV-00484
(S.D.N.Y Jan. 18, 2008), ECF No. 1 (breach of contract suit seeking almost $100,000);
Complaint at 2, Nippon Yusen Kaisha v. Freight Servs. of W. Coast Corp., No. 1:07-CV-07840
(S.D.N.Y Sept. 5, 2007), ECF No. 1 (breach of contract suit seeking just shy of $60,000);
Complaint at 1–2, Nippon Yusen Kaisha v. Fresh W. Exch., No. 1:07-CV-07839 (S.D.N.Y
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Sept. 5, 2007), ECF No. 1 (breach of contract suit seeking over $36,000); Complaint at 1–
2, Nippon Yusen Kaisha v. Anderson Int’l Global, LLC, No. 1:07-CV-07838 (S.D.N.Y Sept.
5, 2007), ECF No. 1 (breach of contract suit seeking around $170,000); Complaint, Nippon
Yusen Kaisha v. BNSF Ry. Co., No. 2:07-CV-02896 (C.D. Cal. May 2, 2007), ECF No. 1
(docket indicates demand for approximately $225,000); Complaint, Nippon Yusen Kaisha
v. BNSF Ry. Co., No. 2:07-CV-02417 (C.D. Cal. Apr. 11, 2007), ECF No. 1 (docket
indicates demands for around $13,000); Complaint at 1–2, Nippon Yusen Kaisha v. Zircon
Logistics, Inc., No. 1:07-CV-02874 (S.D.N.Y. April 10, 2007), ECF No. 1 (breach of
contract suit seeking $135,000); Complaint at 1–2, Nippon Yusen Kaisha v. Air 7 Seas Trans
Logistics, No. 1:07-CV-02873 (S.D.N.Y Apr. 10, 2007), ECF No. 1 (breach of contract suit
seeking $75,000); Complaint at 4–10, Nippon Yusen Kaisha v. BNSF Ry. Co., 3:07-CV-
00563 (N.D. Cal. Jan. 26, 2007), ECF No. 1 (commercial dispute seeking damages or
indemnification of over $255,000); Amended Complaint at 5–10, Nippon Yusen Kaisha v.
BASF Corp., 3:06-CV-03704 (N.D. Cal. June 9, 2006), ECF 43 (suit seeking to avoid or
limit liability for loss of goods in transit); Complaint at 6–11, Nippon Yusen Kaisha v. BNSF
Ry. Co., 3:05-CV-03609 (N.D. Cal. Sept. 7, 2005), ECF No. 1 (commercial dispute seeking
damages or indemnification of over $6 million); Complaint, Nippon Yusen Kaisha v. Union
Pac. Ry. Co., 2:04-CV-08861 (C.D. Cal. Oct. 26, 2004), ECF No. 1; Complaint, NYK Line
(N. Am.) Inc. & Nippon Yusen Kaisha v. BNSF Ry. Co., 2:00-CV-02728 (C.D. Cal. Mar. 16,
2000), ECF No. 1 (docket indicates demand for around $411,000); Complaint, Nippon
Yusen Kaisha v. Bulktrans (Eur.) Corp., No. 1:00-CV-00573 (S.D.N.Y Jan. 27, 2000), ECF
No. 1 (docket indicates demand for $500,000); Complaint, Nippon Yusen Kaisha v.
Kellaway Transp., Inc., No. 2:99-CV-01441 (D.N.J. Mar. 29, 1999), ECF No. 1; Complaint,
Trans-Pac. Policing Agreement & Nippon Yusen Kaisha, Ltd. v. U.S. Customs Serv., No. 1:97-
CV-02188 (D.D.C. Sept. 22, 1997), ECF No. 1; Complaint, Nippon Yusen Kaisha v. Velsicol
Chem., 2:97-CV-03176 (C.D. Cal. Apr. 30, 1997), ECF No. 1 (docket indicates demand for
roughly $168,000); Complaint, Nippon Yusen Kaisha v. Atlantic Ro/Ro Carriers of Tex., Inc.,
No. 2:96-CV-04020 (D.N.J. Aug. 22, 1996), ECF No. 1 (docket indicates demand for
around $2,000); Complaint, Nippon Yusen Kaisha v. W. Ave. Serv., No. 1:96-CV-06137
(S.D.N.Y. Aug. 14, 1996), ECF No. 1 (docket indicates a demand for approximately
$14,000); Complaint, Nippon Yusen Kaisha v. Jeri-Jo Inc., 2:95-CV-06287 (D.N.J. Dec. 18,
1995), ECF No. 1 (docket indicates a demand of around $548,000); Complaint, Nippon
Yusen Kaisha v. Kellaway Transp. Inc., 2:95-CV-04349 (D.N.J. Aug. 16, 1995), ECF No. 1
(docket indicates a demand for approximately $131,000); Complaint, Nippon Yusen Kaisha
Line v. Packard Bell, 2:94-CV-03484 (C.D. Cal. May 26, 1994), ECF No. 1; Complaint, Am.
President Lines, Ltd. & Nippon Yusen Kaisha, et al. v. Kirch Indus. Co., No. 1:93-CV-00497
(D.D.C. Mar. 9, 1993), ECF No. 1; see also Third-Party Complaint, Tokio Marine & Fire Ins.
Co., Ltd. v. M/V Joyous Age, No. 1:03-CV-06346 (S.D.N.Y. Aug. 22, 2003), ECF 4; Third-
Party Complaint, Thyssen Krupp Steel v. M/V Andorinha, No. 1:01-CV-04305 (S.D.N.Y.
May 21, 2001), ECF No. 10; Third-Party Complaint, Talatala v. Nippon Yusen Kaisma, No.
1:94-CV-00340 (D. Haw. May 5, 1994), ECF No. 19 (party name spelled “Kaisma” rather
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It has quite regularly defended itself from suit here as well39—likely at its own
invitation: NYK’s bills of lading and sea waybills affirmatively select the
Southern District of New York as the exclusive forum for all disputes
thereunder.
It strains belief to suggest that the United States is really “a distant or
inconvenient forum” for NYK or that NYK is abstractly burdened by
“submitting to” United States federal courts’ “coercive power.” For one
thing, it is hardly too distant or inconvenient for NYK to do business here;
why, then, is litigation here too distant and inconvenient? It is hardly too
distant or inconvenient for NYK to litigate here as a plaintiff; why, then, is it
too distant and inconvenient as a defendant? NYK clearly welcomes the
opportunity to take advantage of the United States’ robust marketplace, an
economy fostered by the rule of law that our judicial system ensures, and the
corporation freely avails itself of federal courts as a plaintiff. Can NYK really
complain about submitting to federal judicial power when NYK enjoys the
security that that power provides? And can NYK really argue that the
United States has “little legitimate interest” in adjudicating claims brought
than “Kaisha” on the docket); Third-Party Complaint, Okura & Co. (Am.), Inc. v. M.V.
Yamataka Maru, No. 1:92-CV-03783 (S.D.N.Y. May 26, 1992), ECF No. 6; Complaint at
4–5, Nippon Yusen Kaisha v. Bankers Ins. Co., No. 8:19-CV-01343 (M.D. Fla. June 3, 2019),
ECF No. 1-3 (removed from state court).
As matters of public record, complaints filed in federal court are properly subject
to judicial notice. Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017) (“[W]e may take
judicial notice of matters of public record.”).
39
Ante at 4 n.4 (citing complaints filed against NYK in federal court). NYK also
pleaded guilty in 2014 to criminal antitrust charges for its conduct in shipping cargo “to
and from the United States and elsewhere.” Information, United States v. Nippon Yusen
Kabushiki Kaisha (D. Md. 2014) (alleging corporate violations of 15 U.S.C. § 1 (Sherman
Act)); Plea Agreement at 2, 6, United States v. Nippon Yusen Kabushiki Kaisha, 1:14-CR-
00612 (D. Md. Mar. 11, 2015), ECF No. 20 (agreeing to a fine of $59.4 million).
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under United States federal law by United States servicemen and their
families?
The cases before us present no due process problems. Plaintiffs
properly brought suit pursuant to Rule 4(k)(2). NYK has no substantive due
process right to be immune from suit here. And even if it did, none of its
supposed liberty interests have actually been infringed. The Fifth
Amendment’s Due Process Clause poses no obstacle, so these suits should
proceed.40
IV.
The tail should not wag the dog any more than the bow should turn
the ship. While the anticipated repercussions of a constitutional ruling
should not drive the ultimate determination on the merits, it is nonetheless
worth calling attention to the severe and anomalous consequences of today’s
majority holding. First, it will render most of Rule 4(k)(2)’s intended
40
NYK has not alleged any other due process issues with these cases, and nor
could it: The applicable Federal Rules of Civil Procedure are in no way arbitrary or
calculated to frustrate notice. Rule 4(k)(2) reasonably addresses the problem that would
arise when a plaintiff has federal law claims against a “defendant [who] is not subject to
jurisdiction in any state’s courts of general jurisdiction.” In such a case, it would be absurd
if United States federal law claims (brought by United States servicemen, no less) could not
be heard in United States federal court, simply because no individual state’s courts had
jurisdiction pursuant to state long-arm statutes or in keeping with the strictures of the
Fourteenth Amendment (which apply to the states). See Fed. R. Civ. P. 4(k)(1)(A). Rule
4(k)(2) solves the problem by specifying that “serving a summons [per Rule 4(f)] or filing
a waiver of service [per Rule 4(d)] establishes [a federal district court’s] personal
jurisdiction over a defendant” in such a case. In this case, no state had jurisdiction to hear
the federal law claims of the plaintiff servicemen and their bereaved families. So, they filed
their complaints in federal court, and they successfully obtained waivers of service from
NYK in Tokyo. NYK received ample notice of the pending lawsuits. And evidently, this
multinational corporate defendant had no more trouble getting a fair hearing here in federal
court as a defendant than it has had prosecuting dozens of civil cases as a plaintiff in federal
court.
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applications unconstitutional, thereby reducing the statutorily authorized
rule41 to a virtual nullity.42 Second, it will similarly choke Rule 4(k)(1)(C),
which “establishes personal jurisdiction over a defendant” by “[s]erving a
summons or filing a waiver of service . . . when authorized by a federal
statute.” As a result, American victims of terrorist attacks abroad and Cuban
refugees who have lost everything to Communist confiscation will not be
able, meaningfully, to avail themselves of remedial federal legislation. And
finally, today’s holding also brings about a couple of anomalies: (1) civil
foreign defendants now have more due process rights than criminal foreign
defendants; and (2) foreign corporations now receive more due process
protection than domestic corporations under our own Constitution.
A.
Today’s majority holding guts Rule 4(k)(2) of virtually all of its
intended applications. Instead of examining the Fifth Amendment Due
Process Clause’s original meaning, the en banc court simply rides the wake of
inapposite Supreme Court Fourteenth Amendment jurisprudence.
Promulgated in 1993 in response to the Supreme Court’s decision in Omni
Capital Int’l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97 (1987), Rule 4(k)(2)
was designed to authorize federal courts to exercise personal jurisdiction over
41
Rule 4(k) was adopted under the Judicial Improvements and Access to Justice
Act of 1988. See Pub. L. No. 100-702, § 401, 102 Stat. 4642, 4648 (codified as amended at
28 U.S.C. § 2072).
42
Cf. Sveen v. Melin, 138 S. Ct. 1815, 1831 (2018) (Gorsuch, J., dissenting) (“The
judicial power to declare a law unconstitutional should never be lightly invoked.”); Lamar
Outdoor Advert. v. Miss. St. Tax Comm’n, 701 F.2d 314, 333 (5th Cir. 1983) (“We recognize
that our power to strike down state laws as unconstitutional is strong medicine; we do not
administer it lightly.”); El Paso & Ne. Ry. Co. v. Gutierrez, 215 U.S. 87, 96 (1909) (“It is
hardly necessary to repeat what this court has often affirmed, that an act of Congress is not
to be declared invalid except for reasons so clear and satisfactory as to leave no doubt of its
unconstitutionality.”).
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federal claims that could not otherwise be heard in any state court to the
fullest extent consistent with the Constitution. If the Fifth Amendment
mirrors the Fourteenth Amendment, Rule (4)(k)(2)’s range of applications
nearly vanishes.
Consider first general jurisdiction. The Supreme Court has said that
the Fourteenth Amendment only allows the exercise of general personal
jurisdiction over a foreign defendant who is “essentially at home” in the
United States—an “exceptional case” very seldom encountered in real life.
Daimler, 571 U.S. at 139 & n.19 (citing Perkins v. Benguet Consol. Mining Co.,
342 U.S. 437, 447–48 (1952)). Rarely is a foreign-domiciled corporation
deemed “at home” in the United States. Yet these foreign-domiciled
corporations are precisely the prospective defendants to whom Rule 4(k)(2)
was thought to apply.
The majority opinion suggests specific jurisdiction would remain
available under Rule 4(k)(2). Ante at 22–23 & n.27. Maybe so. A few
occasional applications of the Rule could conceivably arise, for instance,
when claims arise in states with long-arm statutes that stop short of the
constitutional maximum,43 or when cyber-injuries affect the United States as
43
Specifically, Rule 4(k)(2) could apply where: (1) a defendant has minimum
contacts with a forum state that has a long-arm statute that stops short of the constitutional
limit; (2) the defendant’s contacts fall between the constitutional and statutory lines; and
(3) no other state forum is available.
In our circuit, such applications of the Rule could arguably only arise out of
Mississippi, which has a somewhat limited long-arm statute. Compare Miss. Stat. § 13-3-
57 (2003) (Mississippi long-arm statute); Gross v. Chevrolet Country, Inc., 655 So. 2d 873,
877–78 (Miss. 1995) (analyzing statutory factors to determine that a nonresident
corporation was “not amenable to jurisdiction in Mississippi pursuant to [the state] long
arm statute”), with Tex. Civ. Prac. & Rem. Code § 17.042 (2001) (Texas long-arm statute);
Searcy v. Parex Res., Inc., 496 S.W.3d 58, 66 (Tex. 2016) (“The Texas long arm statute
provides for personal jurisdiction that extends to the limits of the United States
Constitution, and so federal due process requirements shape the contours of Texas courts’
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a whole and no state in particular. But, as with general jurisdiction, it would
still be the “exceptional case.”
Because the majority opinion lashes together the Fifth and Fourteenth
Amendment personal jurisdiction standards without distinction, Fourteenth
Amendment limitations on specific jurisdiction now apply likewise to Fifth
Amendment cases. And the Supreme Court has said that for courts to have
specific jurisdiction to entertain certain claims, the Fourteenth Amendment
requires the underlying injury to have occurred, at least in part, in the forum.
Bristol-Myers, 137 S. Ct. at 1781–82 (“In order for a court to exercise specific
jurisdiction over a claim, there must be an ‘affiliation between the forum and
the underlying controversy, principally, [an] activity or an occurrence that
takes place in the forum State.’” (quoting Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011))); cf. Ford Motor Co., 141 S. Ct. at
1028, 1030–31 (upholding specific jurisdiction in states where Ford
“systematically served a market . . . for the very vehicles that the plaintiffs
allege malfunctioned and injured them in those States”).
Applying Bristol-Myers’s forum-injury requirement would squelch
federal courts’ exercise of specific jurisdiction over American injuries
sustained abroad, just as Daimler’s “at home” test would squash federal
courts’ exercise of general jurisdiction over foreign corporate defendants
doing substantial, considerable business in the United States. As a result,
Rule 4(k)(2)—a congressionally authorized rule—will indeed be rendered
virtually a nullity—and this as a result of casual reliance on inapposite
Supreme Court precedent. Cf. United States v. Morrison, 529 U.S. 598, 607
(2000) (“Due respect for the decisions of a coordinate branch of
jurisdictional reach.”), and La. R.S. § 13:3201 (Louisiana long-arm statute); Bridges v.
Autozone Props., Inc., 900 So. 2d 784, 803 (La. 2005) (“[T]he limits of Louisiana’s long-
arm statute [are] coextensive with the limits of constitutional Due Process.”).
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Government demands that we invalidate a congressional enactment only upon
a plain showing that Congress has exceeded its constitutional bounds.”
(emphasis added)).
B.
Today’s decision also threatens to sink our ability to hear many cases
sounding in admiralty—an area of law in which we have long been
empowered to adjudicate claims involving far-flung parties aboard vessels in
far-flung places on the seven seas. Federal courts hold a unique role in
admiralty to define causes of action and to hear cases arising in the world’s
common areas—the high seas—as the Supreme Court has made clear. See
Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 20–21 (1963) (“Article III of the
Constitution vested in the federal courts jurisdiction over admiralty and
maritime cases . . . . This Court has long recognized its power and
responsibility in this area and has exercised that power where necessary to do
so.”); The Belgenland, 114 U.S. 355, 368–69 (1885) (noting that there is “no
good reason” why a party injured on the high seas “should ever be denied
justice in our courts,” even when both parties are “foreigners”); cf. The
Dutra Group v. Batterton, 139 S. Ct. 2275, 2278 (2019) (discussing the history
of federal courts “enlarged and liberal” maritime and admiralty
jurisprudence (quoting Brown v. Lull, 4 F. Cas. 407, 409 (C.C.D. Mass. 1836)
(No. 2,018) (Story, J.))).
We and our sister circuits regularly hear cases involving diverse
international parties arising out of events occurring on waters far away. See,
e.g., Liaw Su Teng v. Skaarup Shipping Corp., 743 F.2d 1140, 1142–43, 1145–
46 (5th Cir. 1984) (applying The Belgenland to “retain jurisdiction” over an
admiralty suit involving Taiwanese and Hong Kong sailors on a Liberian ship
that crashed with a Greek ship off the coast of Algeria), overruled on other
grounds by In re Air Crash Disaster Near New Orleans, La. on July 9, 1982, 821
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F.2d 1147 (5th Cir. 1987); Fitzgerald v. Texaco, Inc., 521 F.2d 448, 450–54 (2d
Cir. 1975) (mentioning no jurisdictional issue in a lawsuit between German
and Panamanian interests as to vessels shipwrecked in the English channel);
id. at 455 (Oakes, J., dissenting) (noting that because the court was “dealing
. . . with a transitory action, a collision occurring on the high seas, albeit in
the English Channel, between vessels of foreign registry, with foreign
nationals as plaintiffs . . . . we have jurisdiction”); Gkiafis v. S.S. Yiosonas,
387 F.2d 460, 462 (4th Cir. 1967) (“A suit in admiralty between foreigners is
within the jurisdiction of the District Courts of the United States. Not only
does jurisdiction exist, but it will be exercised ‘unless special circumstances
exist to show that justice would be better subserved by declining it.’”
(quoting The Belgenland, 114 U.S. at 367)).
Although the present case involves a collision occurring in Japanese
territorial waters, the majority holding could impact future cases arising on
the briny deep far from any other sovereign. Because the en banc majority
declines to plumb the Fifth Amendment’s original public meaning, we are
now stuck with an atextual, ahistorical rule that might constrict our ability
even to hear cases that arise beyond any nation’s territorial power. Suppose,
for instance, the collision that spawned this case took place as the ships were
passing Hawaii—but just outside of United States territorial waters. Even
though the claims would have arisen on the high seas, and indeed, much
closer to the United States than Japan, the holding of the majority opinion
would still require the plaintiffs to go all the way to Japan to pursue their
claims because NYK is not “at home” in the United States. This should
give us pause.
C.
This may seem like an academic debate about the quirks of civil
procedure. But consider what this means in the real world. As Judge
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Higginson rightly observes, today’s holding will “redirect United States
citizen-plaintiffs—asserting United States federal law claims and invoking
United States federal law service of process—offshore, often to countries
with far less developed legal systems than Japan.” Post at 99. In significantly
curtailing plaintiffs’ recourse to our nation’s federal courts, the majority’s
decision effectively neuters Congress of its ability to use our own legal system
and its well-established rule of law to help right the most grievous wrongs
committed against Americans abroad.
Look no further than the amicus brief submitted by victims of the
Castro regime. In response to Castro’s terrorist acts, Congress passed and
President Clinton signed the Cuban Liberty and Democratic Solidarity
(LIBERTAD) Act of 1996. Pub. L. No. 104-114, 110 Stat. 785 (codified at 22
U.S.C. § 6021, et seq.) [hereinafter Helms–Burton Act, as it is commonly
known]. The Helms–Burton Act sought to impose international sanctions on
the Castro regime. Specifically, under Title III of the Act, Congress provided
that “[t]o deter trafficking in wrongfully confiscated property, United States
nationals who were the victims of [such] confiscations should be endowed
with a judicial remedy in the courts of the United States that would deny
traffickers any profits from economically exploiting Castro’s wrongful
seizures.” 22 U.S.C. § 6081(11); see also id. § 6082(a)(1)(A).
Despite Congress providing this remedy, every President from 1996
to 2019 lawfully suspended that private right of action. See id. § 6085(c)
(giving the President such authority). But in 2019, President Trump ended
the suspension of Title III, which enabled suits to be filed against those
trafficking in this stolen property. See Glen v. Am. Airlines, Inc., 7 F.4th 331,
333 (5th Cir. 2021). As a result, the victims of the Castro regime’s pervasive
seizure of Cuban assets can seek relief from those foreign actors that reaped
profits from the victims’ stolen property abroad. See, e.g., Herederos de
Roberto Gomez Cabrera, LLC v. Teck Res. Ltd., 535 F. Supp. 3d 1299, 1304–07
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(S.D. Fla. 2021), appeal filed, No. 21-12834 (11th Cir. Aug. 18, 2021) (seeking
relief under the Helms–Burton Act and presently appealing dismissal for lack
of personal jurisdiction).
However, it is an empty gesture here in this circuit. That is because
(according to the majority opinion) the Fifth Amendment’s Due Process
Clause bars Congress from authorizing federal courts to exercise personal
jurisdiction unless either (1) the foreign actor is “essentially at home” here,
or (2) the foreign actor’s trafficking of the stolen property has substantially
occurred in the United States. By constitutionally cabining Rule 4(k)(2), and
also necessarily limiting Rule 4(k)(1)(C), the victims of the Castro regime are
again left empty-handed.
This is not a one-off problem confined to the Helms–Burton
Act. Take the Antiterrorism Act, which provided victims of terrorism abroad
a private right of action in our federal courts. 18 U.S.C. § 2333(a). Now, so
long as foreign sponsors of terrorism target American interests abroad,
federal district courts cannot exercise personal jurisdiction over victims’
claims, despite Congress’s express statutory permission (as recognized by
Rule 4(k)(1)(C))—this, supposedly because of the Fifth Amendment’s Due
Process Clause. See, e.g., Aaron D. Simowitz, The Private Law of Terror, 126
Penn St. L. Rev. 159, 192–93 (2021); see also Brief of Intervenor–Appellant
United States at 35–40, Fuld v. Palestinian Liberation Org. (2d Cir. June 24,
2022) (Nos. 22-76, 22-496) (noting that “Congress . . . has enacted
numerous laws, including the ATA, combating acts of international terrorism
outside the United States that affect U.S. persons and interests” by vesting
federal courts with adjudicative authority, and arguing that the Fifth
Amendment interposes no obstacle to federal court personal jurisdiction in
such cases).
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Consider also the practical effect of the majority opinion’s holding on
the Executive. As amici civil procedure professors point out, if the United
States sued foreign defendants in our federal courts to recover civil damages
for injuries sustained abroad (like, for instance, a Navy vessel wrecked in
foreign waters), the holding in this case equally precludes us from exercising
personal jurisdiction over foreign defendants if they are not “essentially at
home” in the United States. Thus, under the majority opinion’s reasoning,
the federal government is powerless to vindicate American interests and to
recoup damages inflicted (ultimately) on the American taxpayer in our own
federal courts because the Fifth Amendment’s Due Process Clause protects
a foreign defendant from being haled into our courts.44 The harsh absurdity
of this conclusion should surely make us think twice.
D.
Not only does the majority opinion virtually erase a Federal Rule of
Civil Procedure and squash the real-world ability of our coordinate branches
to pursue legitimate objectives through and in federal court, but, as suggested
earlier, see supra sections II.C.2–3, this en banc holding also creates at least
two legal anomalies. First, we now privilege civil foreign defendants with a
due process right not shared by foreign criminal defendants. And second, we
privilege foreign corporations over comparable corporations domiciled here:
the former can reap the rewards of doing business here without the legal
44
Cf. The Belgenland, 114 U.S. at 368–69 (“[W]here the parties are not only
foreigners, but belong to different nations, and the injury . . . takes place on the high seas,
there seems to be no good reason why the party injured, or doing the service, should ever
be denied justice in our courts.”). If an injured foreign party suing another foreigner “should
[n]ever be denied justice in our courts,” a fortiori, neither should an injured United States
citizen or the United States itself.
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consequences to which our own corporations must submit. Both anomalies
suggest that the en banc court has lost its bearings.
1.
“The due process requirements in a civil case where only property
interests are at stake are, of course, much less stringent than in a criminal case
involving life and liberty interests.” Fehlhaber v. Fehlhaber, 681 F.2d 1015,
1027 (5th Cir. 1982) (emphases added). These heightened stakes account for
the many differences between civil and criminal procedure: Criminal
defendants, for instance, must be proven guilty beyond a reasonable doubt,
while civil defendants ordinarily need only be found liable by a
preponderance of the evidence. See In re Winship, 397 U.S. 358, 364
(1970). Criminal defendants are entitled to receive exculpatory evidence
from the prosecution without asking for it; civil defendants proactively must
use discovery to get the evidence that they need. See Brady v. Maryland, 373
U.S. 83, 86 (1963). The list goes on.
Today’s majority opinion produces a troubling inversion of this
general rule. Along with our sister circuits, we have previously held that
federal courts may render binding judgments against foreigners in criminal
cases, regardless of the defendants’ territorial contacts with the United
States, so long as the defendants’ alleged criminal conduct affected the
United States or U.S. nationals abroad.45 See, e.g., Rojas, 812 F.3d at 393 (“In
45
Of course, the federal courts’ ability to render binding criminal judgments
against foreigners also depends upon the existence of a law of Congress enacted pursuant
to one of Congress’s constitutionally enumerated powers. See, e.g., United States v. Davila-
Mendoza, 972 F.3d 1264, 1268–78 (11th Cir. 2020) (vacating convictions of three foreign
nationals for crimes committed in a foreign nation’s territorial waters because the Maritime
Drug Law Enforcement Act exceeded Congress’s enumerated foreign commerce power).
But this does not imply that other enumerated powers do not allow Congress to authorize
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the context of non-U.S. citizens, due process requires the government to
demonstrate that there exists a sufficient nexus between the conduct
condemned and the United States such that application of the statute would
not be arbitrary or fundamentally unfair to the defendant.” (quoting
Lawrence, 727 F.3d at 396 (internal quotation marks omitted))); Murillo, 826
F.3d at 157 (finding no Fifth Amendment obstacle to prosecuting a foreign
defendant in the United States “if his ‘actions affected significant American
interests’—even if the defendant did not mean to affect those interests”
(quoting Brehm, 691 F.3d at 552)).
But now that the Fourteenth Amendment “at home” test applies in
the Fifth Amendment context, foreign corporate civil defendants will be
“immunize[d]” from suit here. Ante at 24. Unlike foreign criminal
defendants, whom federal courts can sentence to death or prison even if they
have never set foot in the United States or never even intended to affect the
United States, civil corporate defendants will be insulated against federal
court personal jurisdiction in cases involving mere money damages if they
can simply show that despite doing even extensive business in the United
States, they are not “essentially at home” here. See Waldman, 835 F.3d at
340 (candidly acknowledging the difference in standards applicable to
criminal and civil cases after importing Daimler’s “at home” test). This
cannot be right.
2.
Yet another anomaly lies in our affording significant due process rights
to a foreign corporation. The American Constitution exists primarily to
secure the rights of Americans. The Supreme Court has held that foreign
personal jurisdiction in federal courts over foreign actors for foreign conduct (whether civil
or criminal) affecting United States interests.
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corporations are entitled to less constitutional protection than citizens, if at
all—especially when they remain abroad. See Agency for Int’l Dev., 140 S. Ct.
at 2086–87 (foreign corporation has no First Amendment rights, despite
having domestic affiliates); see also Douglass, 996 F.3d at 295; cf. Dep’t of
Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1981–83 (2020) (alien within
U.S. territory not entitled to full range of due process rights); Verdugo-
Urquidez, 494 U.S. at 264–75 (alien abroad not protected by the Fourth
Amendment); Eisentrager, 339 U.S. at 784 (aliens abroad not protected by the
Fifth Amendment).
Here, NYK would like to have its cake and eat it too. This foreign
corporation has frequently reaped the benefits of the American legal
system—it has sued nearly eighty times in federal district courts in under
thirty years—but, having been sued, NYK suddenly cries foul. To claim the
protection of Fourteenth Amendment due process case law, NYK insists
that it is not “at home” in the United States and, therefore, cannot be haled
into U.S. court from its residence abroad. In other words, the corporation
demands the right to stay home, abroad. But, in asserting that it has due
process rights under the U.S. Constitution in the first place, NYK
acknowledges its presence in the United States and its desire to receive the
legal benefits of being “at home” here. This runs up against the principle of
noncontradiction: NYK cannot both be “at home” here and not. Something
is not quite right.
* * *
All of these troubling consequences and anomalies are big red flags
signaling that we have headed down the wrong path. We are better off
looking to what the Fifth Amendment’s Due Process Clause meant when it
was adopted—not what the Supreme Court has said the Fourteenth
Amendment’s Due Process Clause means in different contexts. Adhering to
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the Fifth Amendment’s original meaning steers us clear of these problematic
results.
V.
The Supreme Court has never interpreted the Fifth Amendment’s
Due Process Clause with respect to personal jurisdiction. The Court has
expressly left the question open. It is our duty to offer an answer. But the
majority opinion simply copies and pastes inapplicable modern Supreme
Court case law expounding on the Fourteenth Amendment, as if the
Fourteenth Amendment imbues the Fifth Amendment with new meaning.
In my view, we should not put new wine in an old wineskin. There is no
substitute for a diligent inquiry into the original public meaning of the Fifth
Amendment’s Due Process Clause. As originally understood and applied (or
rather, not applied), the Fifth Amendment imposed no significant restriction
on Congress’s ability to authorize service of process abroad, and hence, to
expand federal courts’ personal jurisdiction.
VI.
I would hold that the district court in this case had personal
jurisdiction over NYK and remand for further proceedings. Therefore, I
respectfully dissent.
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Stephen A. Higginson, Circuit Judge, dissenting:
I agree with the dissent’s conclusion that the district court had
adjudicative jurisdiction over NYK. I write separately to highlight that by
importing Fourteenth Amendment constraints on personal jurisdiction, born
out of federalism concerns, into process due to foreign corporations in global
disputes, where those concerns don’t exist, our court makes several mistakes.
First, the Supreme Court has been explicit it has not done this cross-
incorporation. See Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 137 S. Ct.
1773, 1783-84 (2017) (“[S]ince our decision concerns the due process limits
on the exercise of specific jurisdiction by a State, we leave open the question
whether the Fifth Amendment imposes the same restrictions on the exercise
of personal jurisdiction by a federal court.”); see also Omni Capital Int’l, Ltd.
v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987); J. McIntyre Mach., Ltd. v.
Nicastro, 564 U.S. 873, 885 (2011) (plurality opinion); Asahi Metal Indus. Co.
v. Superior Court, 480 U.S. 102, 113 n.* (1987) (opinion of O’Connor, J.).
Second, as valiantly explicated in the principal dissent, discerning
historical purpose to justify cross-incorporation of the 1868 meaning of “due
process” in the Fourteenth Amendment, protecting all persons from state
government depredation, back a century to 1791 and what the framers of the
Fifth Amendment meant protecting “person[s]” from federal government
overreach, all in effort to divine what process is constitutionally due foreign
companies in 21st century global disputes, is an originalist mismatch that
should call to mind Justice Jackson’s reminder three-quarters of a century
ago that “[j]ust what our forefathers did envision, or would have envisioned
had they foreseen modern conditions, must be divined from materials almost
as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952) (Jackson, J.,
concurring). Indeed, academics have regretted that “‘existing records offer
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no evidence of any debate on the due process clause in the Congress . . . or in
the state legislatures that ratified’ the Bill of Rights.” Chimène I. Keitner,
Personal Jurisdiction and Fifth Amendment Due Process Revisited, in THE
RESTATEMENT AND BEYOND: THE PAST, PRESENT, AND FUTURE OF U.S.
FOREIGN RELATIONS LAW 231, 236 n.20 (Paul B. Stephan & Sarah H.
Cleveland eds., 2020) (alteration in original) (citing scholarship).1
Third, as the principal dissent and amici civil procedure scholars, not
to mention practicing lawyers, observe, cross-incorporation has far-reaching,
real-world implications.2 Yet by importing the recently narrowed “place of
business” and “at home” Fourteenth Amendment requirement, which
assigns cases to courts inside the United States, into a Fifth Amendment
constitutional rule against access-to-justice in any United States court for
ever-increasing transnational litigation, what we do is embroider five words
written to enhance liberty in 1791 to send United States plaintiffs overseas in
for hope of justice.3 See Pamela K. Bookman, Toward the Fifth Restatement of
1
My skepticism put to one side, I applaud the principal dissent for its consistency
of constitutional effort.
2
See, e.g., Brief of Amicus Curiae for Civil Procedure Law Professors, at 3-4 (“If,
as the district court held, the Due Process Clause applicable to state courts applies in equal
measure to the federal courts, then Rule 4(k)(2) becomes useless. Indeed, because the
negligence that plaintiffs allege in this case also seriously damages the Navy ship on which
they were serving, that rationale would foreclose a damages suit by the United States
Government from being heard in any federal court in the United States. Congress did not
intend such an unjust result, and the Constitution does not require it.”).
3
It is unsurprising that corporations will calibrate knowledgeably around
jurisdictional leaps like ours today. See, e.g., Catherine A. Spicer et al., Home Is Where
You’re Incorporated: The US Supreme Court Limits Forum Shopping, ASSOCIATION OF
CORPORATE COUNSEL DOCKET, (Dec. 18, 2020), https://docket.acc.com/home-where-
youre-incorporated-us-supreme-court-limits-forum-shopping (“Some businesses
considering this question may prefer to eliminate the possibility of being subject to general
personal jurisdiction in the United States altogether. A multinational company that is
incorporated under the laws of another nation and with its principal headquarters beyond
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U.S. Foreign Relations Law: The Future of Adjudicative Jurisdiction under
Public International Law, in THE RESTATEMENT AND BEYOND, supra, at 335,
341 (describing “litigation isolationism” trend in doctrine—of course
without anticipating our leap today cross-incorporating Daimler’s inapt
federalism-based constriction to curtail application of federal law to
multinational corporate defendants altogether); see also Pamela K. Bookman,
Litigation Isolationism, 67 STAN. L. REV. 1081 (2015); Pamela K. Bookman,
Doubling Down on Litigation Isolationism, 110 AJIL UNBOUND 57 (2016).
When a defendant is a foreign corporation, even doing continuous and
immense commerce in the United States, if it stays purposively not “at
home” in any state, then its actions that infringe federal law across the globe
yet without specific jurisdiction case-link, cannot be heard. See also Aaron D.
Simowitz, Legislating Transnational Jurisdiction, 57 VA. J. INT’L L. 325, 327-
28 (2018) (describing how the United States has become one of the most
“jurisdictionally stingy” countries in the world—again, of course, without
anticipating our further leap).
Fourth, cross-incorporation of bedrock fair notice due to “persons”
in interstate cases, a federalism-centered and court-preserving inquiry, to
fairness owed overseas corporations in international cases, I think overlooks
the Supreme Court’s distinct, foreign powers and sovereign state-centered
comity approach confirmed in Daimler AG v. Bauman itself. 571 U.S. 117,
140-42 (2014). That inquiry, broadly described, resembles Fourteenth
Amendment doctrinal constriction in outcome—redirecting litigation among
courts—but, to my eye, is based neither on international law nor
extrapolation from the Fifth Amendment. Instead, the Court assesses
litigation in the international setting with use of the canon of statutory
US borders will be “at home” nowhere in the United States. Claims against such a
company could therefore be brought only pursuant to a court’s specific jurisdiction.”).
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interpretation known as the presumption against extraterritoriality, premised
itself on the separation of powers truth that our political branches possess
foreign relations powers hence courts should not apply United States statutes
prescriptively when doing so might infringe the sovereignty of foreign nations
unless Congress has made that intent clear. See RJR Nabisco, Inc. v. European
Cmty., 579 U.S. 325 (2016); Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247(2010); EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991).
Finally, the distinction that the Supreme Court has preserved, which
we erase with cross-incorporation, is delineation that scholars, not only of
constitutional law, supra, but also of foreign relations law, have discussed for
years. See, e.g. THE RESTATEMENT AND BEYOND, supra. Much of this
discussion is at the heart of The Restatement of the Foreign Relations Law
of the United States, see FOURTH RESTATEMENT OF FOREIGN RELATIONS
LAW §§ 401, 422, unacknowledged by us too, even as we redirect United
States citizen-plaintiffs—asserting United States federal law claims and
invoking United States federal law service of process—offshore, often to
countries with far less developed legal systems than Japan.4
With the above in mind, I am confident that when the Supreme Court
revisits the distinction it carefully has preserved, it will take cognizance of all
4
At minimum, in this area of international comity and sensitivity, it would be
important to know the views of the Solicitor General, or those of the Legal Advisor to the
Department of State, as to what nexus is sufficient for federal courts to assert adjudicative
jurisdiction without entangling our legal system with those of other nations. Though the
Acting Solicitor General declined to file a brief in this case, in other cases, the United States
has asked for special solicitude for its own sovereignty on the international stage. See, e.g.,
Brief of the United States as Amicus Curiae at 32, Ford Motor Co. v. Mont. Eighth Jud. Dist.
Ct., 141 S. Ct. 1017 (2021) (Nos. 19-368, 19-369), 2020 WL 1478612, at *32 (“In addition,
the United States’ constitutional powers and special competence in matters of foreign
affairs and international commerce, in contrast to the limited and geographically cabined
sovereignty of each of the several States, would permit the exercise of federal judicial power
in ways that have no analogue at the state level.”).
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pertinent scholarship, constitutional and foreign relations law. And I am
confident it will consider the real world consequences the amici civil
procedure professors highlight to urge, based both on Supreme Court
precedent and also Congress’s Rule 4(k)(2), that, in cases arising under
federal law, the Fifth Amendment allows more flexibility than the Fourteenth
Amendment, permitting “jurisdiction over a non-US defendant that does
‘systematic and continuous’ business in the United States.” Here, that test
is certainly met given NYK’s extensive business and frequent litigation in the
United States, hence I would find jurisdiction.
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Andrew S. Oldham, Circuit Judge, dissenting.
This case should be resolved by two propositions. First, the Supreme
Court has never answered—in fact, it has expressly left “open”—“the
question whether the Fifth Amendment imposes the same restrictions [as the
Fourteenth] on the exercise of personal jurisdiction by a federal court.”
Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1784 (2017); see
also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 885 (2011) (plurality
op.); Omni Cap. Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987).
Second, as originally understood, the Fifth Amendment did not impose any
limits on the personal jurisdiction of the federal courts. Instead, it was up to
Congress to impose such limits by statute. See, e.g., Stephen E. Sachs, The
Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703, 1717–27
(2020); Picquet v. Swan, 19 F. Cas. 609, 615 (C.C.D. Mass. 1828) (No. 11,134)
(Story, J.); see also ante, at 54–61 (Elrod, J., dissenting). That should’ve been
the end of the case.
With all respect for my esteemed colleagues, I do not understand how
this case implicates (1) “linguistic drift.” See ante, at 43–44, 63 (Elrod, J.,
dissenting). Nor do I see how the Supreme Court’s (2) “longstanding
incorporation jurisprudence” or (3) unenumerated-rights precedents
prevent us from adopting the originalist answer here. See ante, at 31–32 (Ho,
J., concurring).
1.
Start with linguistic drift. The theory appears to be that “due process
of law” could’ve had one original public meaning when the People ratified
the Fifth Amendment in 1791, and it could’ve “drifted” to some different
original public meaning in 1868 when the People ratified the Fourteenth
Amendment. See ante, at 43–44, 63 (Elrod, J., dissenting). Maybe it did.
Maybe it didn’t. All I know is that “linguistic drift” is irrelevant here.
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The Supreme Court has confessed that its Fourteenth Amendment
personal jurisdiction precedents do not rest on original public meaning. See
Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1036–39 (2021)
(Gorsuch, J., concurring in the judgment); id. at 1032 (Alito, J., concurring in
the judgment) (agreeing that “there are grounds for questioning the standard
that the Court adopted in International Shoe” as an original matter); id. at
1025 n.2 (majority op.) (effectively conceding as much). With no originalist
endpoint, there’s nothing for the Fifth Amendment’s original public
meaning to “drift” to.
And it’s particularly odd to inject into this case a theory of reverse drift.
I do not understand how or why we’d take an unoriginalist interpretation of
the Fourteenth Amendment, pull it back in time to 1791, and use it to blind
ourselves to an originalist interpretation of the Fifth Amendment. Ante, at
32–33 (Ho, J., concurring). I am unaware of any case from any court that
obligates us to do that—especially to answer a question that the Supreme
Court has insisted is “open.” Bristol-Myers, 137 S. Ct. at 1784.
2.
Next, incorporation. Here, the theory appears to be that incorporation
doctrine obligates us to apply the same body of law to the federal and state
governments. So, the theory goes, we must use the same non-originalist
understanding of “due process of law” for both the Fifth and Fourteenth
Amendments. See ante, at 34–35 (Ho, J., concurring).
I recognize that Judge Ho invokes incorporation as yet another reason
for rejecting the principal dissent’s theory of “linguistic drift.”1 It
1
I also take it that Judge Ho invites other arguments for applying different bodies
of personal-jurisdiction law to the federal and state governments. See ante, at 35 (Ho, J.,
concurring). One argument is that none of the personal-jurisdiction limits—for any
government, state or federal—come from the Fifth or Fourteenth Amendments. See Sachs,
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nonetheless bears emphasis, however, that incorporation does nothing to
prevent us from adopting an originalist understanding of the Fifth
Amendment’s Due Process Clause—even in the face of the Court’s non-
originalist understanding of the Fourteenth Amendment.
Any suggestion to the contrary conflates procedural and
“substantive” due process. Personal jurisdiction—which is all that matters
here—is a question of “procedural due process.” Phillips Petrol. Co. v. Shutts,
472 U.S. 797, 812 (1985) (emphasis added). Incorporation, by contrast, is a
question of “substantive” due process. See Dobbs v. Jackson Women’s Health
Org., 142 S. Ct. 2228, 2246 (2022). That is, the Court’s incorporation
precedents take the substantive constitutional rights guaranteed by the first
eight amendments and then use the Fourteenth Amendment’s Due Process
Clause to make those rights applicable against the States. It’s of course true
that the substantive rights are the same, regardless of whether the plaintiff
sues a federal or state defendant. McDonald v. City of Chicago, 561 U.S. 742,
765 (2010); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2137
(2022). But that says nothing about whether the same procedural restrictions
apply to the federal and state governments. That’s presumably why, again,
the Court has insisted the Fifth Amendment procedural due process question
is “open,” Bristol-Myers, 137 S. Ct. at 1784, notwithstanding the substantive
rights guaranteed by incorporation doctrine.2
supra, at 1722–24. They instead come from the common law, which obviously could place
different limits on the reach of the federal and state sovereigns.
2
It’s no answer to say that the Supreme Court first left open the Fifth Amendment
procedural due process question before it started incorporating the Bill of Rights against
the States. See ante, at 29 (Ho, J., concurring) (“But French [v. Barber Asphalt Paving Co.,
181 U.S. 324 (1901),] was issued before the Court embraced the doctrine of
incorporation.”). Bristol-Myers (2017), McIntyre (2011), and Omni (1987) were all decided
long after. The Court was surely aware of its incorporation doctrine in 2017, 2011, and 1987.
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3.
Finally, a word about unenumerated rights. Ante, at 31 (Ho, J.,
concurring) (relying on Gonzales v. Carhart, 550 U.S. 124 (2007)). In
Carhart, the Court upheld a federal-law abortion restriction without
considering whether the Fifth and Fourteenth Amendments require different
substantive frameworks for abortion. 550 U.S. at 132–68. From that, my
esteemed colleague infers that both amendments must impose identical
procedural frameworks for personal jurisdiction. See ante, at 31 (Ho, J.,
concurring).
That’s a non sequitur. And it’s easy to understand why no one swerved
out of the way to address irrelevant procedural arguments while considering
the invocation of an unenumerated “substantive” due process claim in 2007.
First, the Court did not purport to ground its preexisting abortion
doctrine in originalism. E.g., Planned Parenthood of Southeastern Pennsylvania
v. Casey, 505 U.S. 833, 847–49 (1992) (plurality op.); see also Dobbs, 142 S.
Ct. at 2317–50 (dissenting op.) (not defending Roe or Casey on originalist
grounds). So it’s unsurprising that the Carhart litigants said nothing about
the original public meaning of any part of the Constitution.
Second, and in any event, long before Gonzales, the Supreme Court
held that the same substantive framework applies to unenumerated rights
under both the Fifth and Fourteenth Amendments’ Due Process Clauses.
See, e.g., Reno v. Flores, 507 U.S. 292, 301–03 (1993); United States v. Salerno,
481 U.S. 739, 746 (1987). That obviously mattered in Gonzales. And it
obviously doesn’t matter where, as here, no one invokes “substantive” due
process. In short, “[t]he non-discussion of an irrelevant question in an
unrelated case does not prevent us from reaching the right answer to a
constitutional question that the Supreme Court has expressly left open.”
Ante, at 45 n.4 (Elrod, J., dissenting).
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