The Due Process Clause of the Fourteenth Amendment imposes limits on the extent of personal jurisdiction that can be asserted by state courts. Since the Fifth Amendment also contains a Due Process Clause and imposes due process obligations on the federal government, does this mean that federal courts are subject to equivalent limits on personal jurisdiction? Maybe, but maybe not.
In a fascinating contest of Lewis v. Mutond, released yesterday, Judge Neomi Rao of the United States Court of Appeals for the DC Circuit notes that there is reason to doubt that the due process clauses of the Fourteenth and Fifth Amendments impose equivalent limitations (in particular , as here, in cases involving foreign defendants). It should be noted that she cites the scholarship of co-conspirator Stephen Sachs extensively.
Although the issue has not been clearly presented in this case, Judge Rao suggests that the DC Circuit should reconsider this issue when properly brought before its court.
Judge Rao’s agreement is below the fold.
Under circuit precedent, we have no personal jurisdiction over Darryl Lewis’ claims because he did not plausibly allege the minimum required contacts with the United States as a whole. I agree with the Panel’s view, but write separately to note that there are reasons to reconsider whether the personal jurisdictional limits required by the Due Process Clause of the Fifth Amendment are identical to those of the Fourteenth Amendment. .
Shortly after this circuit, the same personal proficiency standards apply under the Fifth and Fourteenth Amendments, Livnat v. Palestinian Authority851 F.3d 45, 54 (DC Cir. 2017), the Supreme Court said it is an “open” question whether the Fifth Amendment imposes the same due process limitations as the Fourteenth, Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 582 US 255, 137 S.Ct. 1773, 1783–84, 198 L.Ed.2d 395 (2017). Although the parties do not raise this issue, if so, we should reevaluate the limits the Fifth Amendment places on the exercise of personal jurisdiction by federal courts over foreign defendants.
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Lewis sued two Congolese officials in federal district court, alleging they imprisoned and tortured him. Lewis’ cause of action arose under the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 USC footnote § 1350). To establish personal jurisdiction, he invoked Federal Rule of Civil Procedure 4(k)(2). This rule allows a claimant “to establish[ ] personal jurisdiction over a defendant” who “is not subject to the jurisdiction of the courts of general jurisdiction of any State” simply by “serving a subpoena on him”. FED. R. CIV. P. 4(k)( 2); see also Atchley v AstraZeneca UK Ltd., 22 F.4th 204, 231–32 (DC Cir. 2022) (explaining rule 4(k) “is essentially a long-term federal law”). No party disputes that Lewis has a cause of action under federal law or that Lewis properly served the Congolese defendants pursuant to Rule 4(k). The only question is whether the assertion of personal jurisdiction would be “consistent with the Constitution of the United States”. FEED. A. CIV. P.4(k)(2)(B). In federal court, this petition relates to the limitations imposed by the Due Process Clause of the Fifth Amendment.
In Livnat, we have determined that the “usual” Fourteenth Amendment-specific jurisdictional requirements also apply to the Fifth Amendment investigation. 851 F.3d at 56. We must therefore consider whether the Respondent has the required “minimal contacts” with “the United States as a whole”. Identifier. at age 55; see International Shoe Co. vs. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). THE Livnat The court gave three reasons for equating the due process protections of the Fifth and Fourteenth Amendments. First, he cited the “uniform” view of our sister circuits and suggested that Supreme Court precedent also dictated this outcome. Livnat, 851 F.3d at 54–55. Second, the court could identify no reason to distinguish between the two due process clauses. The plaintiffs argued that the jurisdiction of federal courts does not involve the federalism concerns that arise when assessing the jurisdiction of state courts; however, the court rejected this argument because “personal jurisdiction is not just about federalism.” Identifier. at 55. Finally, the court suggested that applying the same standards of personal competence in both contexts would be “easier to administer”. Identifier. at 55–56.
All three of LivnatThe premises of were questioned in the years that followed. First, a few months later Livnatthe Supreme Court expressly left “open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court” that the Fourteenth Amendment imposes on state courts. Bristol Myers, 137 S.Ct. to 1784. The Supreme Court has yet to resolve this open question, although other circuits have followed Livnatis reasoning. See, for example, Douglass versus Nippon Yusen Kabushiki Kaisha46 F.4th 226, 234–41 (5th Cir. 2022) (en banc).
Second, a recent original study suggests that there are reasons to distinguish Fifth and Fourteenth Amendment standards. See Stephen E.Sachs, The unlimited jurisdiction of the Federal Courts, 106VA. L. REV. 1703 (2020). There is little (if any) evidence that courts and founding-era commentators understood that the Due Process Clause of the Fifth Amendment imposed a minimum contact requirement. Rather, the widespread assumption was that Congress could extend federal personal jurisdiction by statute. See Douglas46 F.4th at 260–62 (Elrod, J., dissenting) (analyzing early cases and concluding that “none support” the application of the minimum contacts test to determine the limits of due process under the fifth amendment).
To give just a few examples, Justice Story explained that, had Congress spoken clearly, it could have authorized “a subject from England, or France, or Russia… [to] to be summoned from the other end of the globe to obey our procedure and to submit to the judgment of our courts.” Picket versus Swan, 19 F. Case. 609, 613 (CCD Mass. 1828) (#11,134); see also Sachs, Jurisdiction, 106VA. L. REV. to 1714–17 (discussing Picket). The court declined to exercise jurisdiction over the defendant (an American expatriate), not because of a constitutional limitation, but because Congress had failed to provide the necessary authorization. Picket, 19 F. Case. at 613–15. Ten years later, the Supreme Court described Story’s reasoning as “having great force” and took the same approach. Toland v Sprague, 37 US (12 Pet.) 300, 328, 9 L.Ed. 1093 (1838). The prevailing understanding was that when it came to prosecuting foreign defendants in federal courts, the scope and limits of personal jurisdiction were governed by Congress.
Livnat applied the minimum contacts test to assess the personal jurisdiction of federal courts by importing the limits of due process from the Fourteenth Amendment into the Fifth Amendment. See Sachs, Jurisdiction, 106VA. L. REV. to 1705 (“[C]the current doctrine…takes the Fourteenth Amendment as it is given and remakes the Fifth Amendment in its image. “). Sources of original meaning suggest it may well be a parachronism.
This leaves Livnatthird rationale for: ease of administration. But the fact that a given approach may be easy to administer does not make it legally sound. Such pragmatic considerations cannot override the correct interpretation of the Constitution.
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There is substantial evidence that the Fifth Amendment does not impose the same due process limits on the personal jurisdiction of federal courts that the Fourteenth Amendment imposes on state courts. A reassessment of Fifth Amendment due process protections is best undertaken by the court en banc in an appropriate case with the benefit of a full briefing. Because today’s court correctly applies our precedent, I agree.
