A wide range of federal statutes reach conduct overseas. When those statutes include private rights of action, Americans may find themselves with claims against defendants with fewif anyties to the U.S.
Since the U.S. Supreme Courts decision in Daimler v. Bauman cut back states authority to hale non-resident corporations into court for conduct unrelated to their activities in-state, many have assumed that these would-be plaintiffs are out of luck.
Now, in Douglass v. Nippon Yusen Kabushiki Kaisha, the Fifth Circuit has decided to take a second look at the question of whether and how that rule applies when federal courts hear federal-law claims against corporations based abroad.
Federal courts personal jurisdiction usually depends on the long-arm statutes of the states in which they sit. Those statutes are subject to the 14th Amendments Due Process Clause, which limits states jurisdiction over non-resident defendants to situations where the claims against them arise from, or relate to, their in-state conduct.
But federal law has its own long-arm provisions, governed by the Fifth Amendment, that are intended to fill in where state law leaves gaps.
Although the Fifth and 14th Amendments Due Process clauses are worded identically, the Supreme Court has gone out of its way, in cases like Bristol-Myers Squibb v. Superior Court, to leave open whether the clauses impose the same constraints. And the government has argued, most recently last term in Ford v. Montana Eighth Judicial Dist. Ct., that the U.S.s unique constitutional prerogatives and powers permit the exercise of federal judicial power in ways that have no analogue at the state level.
Yet most federal appellate courts, including the First, Second, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh, Federal, and D.C. circuits, have assumed or held without much analysis that federal service-of-process provisions are subject to the same limits as their state-law counterparts. The only difference they have recognized is that litigants proceeding under federal service-of-process provisions can aggregate defendants contacts with the U.S. as a whole, instead of any single state.
Its worth asking why. After all, a central justification for the focus on forum contacts under the 14th Amendment is the need to protect interstate federalism. But federalism is beside the point when a federal court hears federal-law claims against, say, a foreign terrorist organization that injures Americans traveling abroad or a foreign company that traffics in overseas property confiscated from U.S. citizens. And its not clear how much the inconvenience that litigating here imposes on non-resident foreign defendants should weigh against the judgment of Congress that Americans should be able to bring claims based on foreign conduct.
These are among the questions the full Fifth Circuit will consider when it rehears Douglass.
The appeal arises from a collision in Japanese waters on June 17, 2017, between the U.S. Navy destroyer USS Fitzgerald and a cargo ship (MV ACX Crystal) chartered by a Japanese shipping company that left seven U.S. sailors dead and dozens injured. In consolidated cases, the victims and their survivors sued the company under the federal Death on the High Seas Act. They asserted personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2), which allows service of process in federal-law suits where the defendant is not subject to jurisdiction in any state.
Finding no connection between the accident and the shipping companys limited U.S. contacts, the district court dismissed the suits under Daimler. A panel of the Fifth Circuit grudgingly affirmed, devoting much of its per curiam opinion to casting doubt on circuit precedent that subjected Rule 4(k)(2) to the same 14th-Amendment standard as its state-law counterparts. The two active judges on the panel concurred, urging the full court to revisit the issue. It agreed to do so July 2.
With virtually no guidance from the Supreme Court, the case promises to take the predominantly conservative appeals court back to first principles. That could lead to interesting debates about federal power, sovereignty, and what it means to be faithful to the U.S. Constitutions text. And it could make the Fifth Circuit, which includes Louisiana, Mississippi, and Texas, the go-to forum for federal claims against non-resident foreign corporations.
Although its impossible to predict the outcome, it seems unlikely that the court took the case en banc just to confirm its prior precedent. The question is how far it will go.
The now-vacated panel decision gives one hint: It endorsed a compromise position suggested by an amicus brief from civil-procedure scholars that would read the Fifth Amendment to allow jurisdiction over foreign corporations for claims based on foreign conduct that is related to their U.S. operations. But the court could go further still and hold, as the governments brief in Ford suggested, that the Constitution imposes no territorial constraints on federal authority.
Whatever the result, the Supreme Court is sure to face calls to weigh in before long.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Write for Us: Author Guidelines
Eugene Sokoloff is counsel at MoloLamken LLP where he focuses on critical motions and appeals.
Originally posted here:
Just How Long Is the Long Arm of U.S. Jurisdiction? - Bloomberg Law
- Lebanese Pro-Federalism Activist Alfred Riachi: Prior To October 7, The Standard Of Living In Gaza Was Pretty ... - Middle East Media Research... - February 22nd, 2024 [February 22nd, 2024]
- The Potential Impact of 'Disease X' on Federalism in the U.S. - Medriva - February 22nd, 2024 [February 22nd, 2024]
- 'People's Charter' Puts Federalism at The Heart of Myanmar's Democratic Future - The Irrawaddy - February 22nd, 2024 [February 22nd, 2024]
- Siddaramaiah vs Modi: The 'cess-y' mess in fiscal federalism - Deccan Herald - February 22nd, 2024 [February 22nd, 2024]
- Ideas Of India: Devendra Fadnavis To Take A Deep Dive Into Role Of Collaborative Federalism In Nation-Building - ABP Live - February 22nd, 2024 [February 22nd, 2024]
- Potential of federalism should be realized: PM Dahal - The Himalayan Times - February 22nd, 2024 [February 22nd, 2024]
- Sensible education policy needed - The Kathmandu Post - October 9th, 2023 [October 9th, 2023]
- Both cooperative federalism and competitive federalism have their ... - Insights IAS - August 18th, 2023 [August 18th, 2023]
- Federalism to poll promises: South India CMs bring up host of local ... - South First - August 18th, 2023 [August 18th, 2023]
- Justice Mitchell (Alabama): "The New Bar Exam Puts DEI Over ... - Reason - May 20th, 2023 [May 20th, 2023]
- Season of instability - The Kathmandu Post - May 20th, 2023 [May 20th, 2023]
- Trump Indictment Tests Congress's Role in State Investigations - Bloomberg Law - May 20th, 2023 [May 20th, 2023]
- Big Business' New Plan Would Create Fifty New Immigration Policies - Federation for American Immigration Reform - May 20th, 2023 [May 20th, 2023]
- Senator decries move to block bill loosening Wisconsin abortion law - Milwaukee Journal Sentinel - May 20th, 2023 [May 20th, 2023]
- "Illegally buying time": Congress leader Abhishek Singhvi chastises ... - ANI News - May 20th, 2023 [May 20th, 2023]
- Baby Ninth Amendments Part IV: All the Rights but Not ALL the Rights - Reason - May 20th, 2023 [May 20th, 2023]
- Amid the Fight for Myanmar, Federalism Rises from the Grass Roots - United States Institute of Peace - May 18th, 2023 [May 18th, 2023]
- Lesson from Karnataka respect states and India's federalism - Deccan Herald - May 18th, 2023 [May 18th, 2023]
- Dr. Paul Nolette named director of Les Aspin Center for Government ... - Marquette Today - May 18th, 2023 [May 18th, 2023]
- Sen. Cramer Welcomes ND Witnesses, Discusses Water ... - Kevin Cramer - May 18th, 2023 [May 18th, 2023]
- Utilities, Transmission, and the Grid: An Interview with Ari Peskoe - Brown Political Review - May 18th, 2023 [May 18th, 2023]
- Six months after elections, provincial governments are still incomplete - The Kathmandu Post - May 18th, 2023 [May 18th, 2023]
- NON-FICTION: WHY FEDERALISM ENDURES IN PAKISTAN ... - DAWN.com - May 6th, 2023 [May 6th, 2023]
- Justice Scalia's Unpublished Dissent in Kelo v. City of New London - Reason - May 6th, 2023 [May 6th, 2023]
- Citizens, civil society hold the ruling party, BJP to account ... - SabrangIndia - May 6th, 2023 [May 6th, 2023]
- ED Proposes Title IX Athletics Rule Requiring Participation Based ... - The Federalist Society - May 6th, 2023 [May 6th, 2023]
- The Mysterious Case of the Imposition of Article 355 in Manipur - The Wire - May 6th, 2023 [May 6th, 2023]
- Non-BJP State Governments Not Exercising Accountability, Allowing ... - Daily Excelsior - May 6th, 2023 [May 6th, 2023]
- Two years of Stalin government in Tamil Nadu: Two steps forward - Times of India - May 6th, 2023 [May 6th, 2023]
- What is the issue of gubernatorial inaction in the legislative process ... - Insights IAS - April 29th, 2023 [April 29th, 2023]
- World Bank Approves $100 Million to Strengthen Nepal's Healthcare ... - ReliefWeb - April 29th, 2023 [April 29th, 2023]
- Canada's federal transfer payment system badly needs a tune-up - The Conversation - April 29th, 2023 [April 29th, 2023]
- 50 years of basic structure doctrine | Only safeguard against majoritarian govt: Sr Advocate Ramachandran - The Indian Express - April 29th, 2023 [April 29th, 2023]
- Federalism - Definition, Examples, Cases, processes - Legal Dictionary - February 20th, 2023 [February 20th, 2023]
- What is federalism? | State Policy Network - February 5th, 2023 [February 5th, 2023]
- UPSC Key- January 19, 2023: Learn about Annual Status of Education Report, Federalism and State Legislatures - The Indian Express - January 19th, 2023 [January 19th, 2023]
- Advantages and Disadvantages of Federalism American Government - January 6th, 2023 [January 6th, 2023]
- fiscal federalism | public finance | Britannica - December 26th, 2022 [December 26th, 2022]
- About ALEC - American Legislative Exchange Council - December 12th, 2022 [December 12th, 2022]
- Canadian federalism - Wikipedia - November 23rd, 2022 [November 23rd, 2022]
- U.P. bags top honours at PMAY-U Awards 2021 - The Hindu - November 23rd, 2022 [November 23rd, 2022]
- Political Line sc views on conversions rajiv convicts and federalism and more - The Hindu - November 21st, 2022 [November 21st, 2022]
- Byron Williams: The court is poised to rewrite federalism - Winston-Salem Journal - October 17th, 2022 [October 17th, 2022]
- Why Hindi may set the tone for 2024 - Deccan Herald - October 17th, 2022 [October 17th, 2022]
- A Myanmar roadmap: Charting the path to federal democracy - International IDEA - October 17th, 2022 [October 17th, 2022]
- Next generation of reforms should focus on reducing cost of doing business - Economic Times - October 17th, 2022 [October 17th, 2022]
- Nigeria And The Intrigues Of Insecurity -By Kene Obiezu - Opinion Nigeria - October 17th, 2022 [October 17th, 2022]
- Trudeau's aggressive federalism may leave Ottawa weaker than before - The Globe and Mail - October 15th, 2022 [October 15th, 2022]
- What is Federalism? | CSF - October 15th, 2022 [October 15th, 2022]
- Kerala Against Hindi Imposition; Terms Recommendations Attack on Federalism and Diversity of Nation - NewsClick - October 15th, 2022 [October 15th, 2022]
- 2023: Well Vote for Candidate Committed to Federalism, Diversity, Says UPU - THISDAY Newspapers - October 15th, 2022 [October 15th, 2022]
- Attorney General Knudsen fights Biden administration rule requiring states to reach net-zero highway emissions - Montana Department of Justice - October 15th, 2022 [October 15th, 2022]
- How Scotland can learn from Quebec's third way on constitution - HeraldScotland - October 15th, 2022 [October 15th, 2022]
- Federalism and Why Presidents Fail - THISDAY Newspapers - September 22nd, 2022 [September 22nd, 2022]
- Vedanta and the missing spirit of federalism - The New Indian Express - September 22nd, 2022 [September 22nd, 2022]
- Federalism Most Suited Idea For India In View Of Its Diversity, Centralising Whole Things Will Lead To... - Live Law - Indian Legal News - September 22nd, 2022 [September 22nd, 2022]
- Urging the Use of One Federal Decision Rule to Speed Up Bipartisan Infrastructure Law Projects - Kevin Cramer - September 22nd, 2022 [September 22nd, 2022]
- Constitution Day 2022: Celebrating the right to govern ourselves - Yellowhammer News - September 22nd, 2022 [September 22nd, 2022]
- From Augusta Constitution Day: What does it mean to you? - Press Herald - September 22nd, 2022 [September 22nd, 2022]
- Explained | The office of the Governor: its origins, powers, and controversies - The Hindu - September 22nd, 2022 [September 22nd, 2022]
- Geography Professional Speaker Series kicks off with alumnus from Ohio EPA on Sept. 23 - Ohio University - September 22nd, 2022 [September 22nd, 2022]
- Vector-borne diseases trouble Nepal every year as there is not a single entomologist - Online Khabar (English) - September 22nd, 2022 [September 22nd, 2022]
- The Gujarat factor in the development project - Hindustan Times - September 22nd, 2022 [September 22nd, 2022]
- The downslide in federal relations - The Indian Express - September 22nd, 2022 [September 22nd, 2022]
- Competition between states to attract investment will boost Indias economy - Moneycontrol - September 22nd, 2022 [September 22nd, 2022]
- For state of the nation, look at states of the nation: Niti Aayogs new chief says it will help states learn - Times of India - September 22nd, 2022 [September 22nd, 2022]
- Letters to the Editor: Queen injected vitality, vigour into lives of many - The Kingston Whig-Standard - September 22nd, 2022 [September 22nd, 2022]
- Climate action that runs on cooperative federalism - The Hindu - September 15th, 2022 [September 15th, 2022]
- The spirit of federalism - The News International - September 15th, 2022 [September 15th, 2022]
- Javier Perez Sandoval Receives the 2022 William Anderson Award - - Political Science Now - September 15th, 2022 [September 15th, 2022]
- A new Constitutional Convention is a very bad idea | Opinion - Knoxville News Sentinel - September 15th, 2022 [September 15th, 2022]
- Rodney Hero Receives the 2022 Barbara Sinclair Lecture Award - - Political Science Now - September 15th, 2022 [September 15th, 2022]
- Department of the Interior, Fish and Wildlife Service: Migratory Bird Hunting; 20222023 Seasons for Certain Migratory Game Birds - Government... - September 15th, 2022 [September 15th, 2022]
- Increasing Threat To Federalism From Centrally Sponsored Schemes- Need To Form A Federal Front - Countercurrents.org - September 3rd, 2022 [September 3rd, 2022]
- Breakenridge: Supporting federalism is the only way Alberta can be a partner in LNG exports - Calgary Herald - September 3rd, 2022 [September 3rd, 2022]
- Two tools for tracking the American Rescue Plans local and national impacts - Brookings Institution - September 3rd, 2022 [September 3rd, 2022]
- Opinion | Will election candidates co-operate with CN over intermodal hub? - Toronto Star - September 3rd, 2022 [September 3rd, 2022]
- Department of the Interior, Fish and Wildlife Service: Migratory Bird Hunting; Final 202223 Frameworks for Migratory Bird Hunting Regulations -... - September 3rd, 2022 [September 3rd, 2022]
- Its time to reset Centre-state relations. Onus rests on the central government - ThePrint - August 29th, 2022 [August 29th, 2022]
- 'Election Denier' Is The Dumbest Rhetorical Device In Modern Politics - The Federalist - August 29th, 2022 [August 29th, 2022]