Do the 5th and 14th Amendments Impose Equivalent Due Process Limits on Court Jurisdiction?

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The Due Process Clause of the Fourteenth Amendent imposes limits on the scope of personal jurisidiction that may be asserted by state courts. As the Fifth Amendment also contains a Due Process Clause, and imposes due process obligations on the federal government, does that mean that federal courts are subject to equivalent limits on personal jurisdiction? Perhaps, but perhaps not.

In a fascinating concurrence in Lewis v. Mutond, issued yesterday, Judge Neomi Rao of the U.S. Court of Appeals for the D.C. Circuit notes there are reasons to doubt whether the Fourteenth and Fifth Amendment Due Process Clauses impose equivalent limitations (particularly, as here, in cases involving foreign defendants). Of note, she cites the scholarship of co-conspirator Stephen Sachs exteensively.

While the question was not squarely presented in this case, Judge Rao suggests that the D.C. Circuit needs to consider this question anew when it is properly put before her court.

Judge Rao’ concurrence is below the fold.

Under circuit precedent, we have no personal jurisdiction over Darryl Lewis’s claims because he has not plausibly alleged the required minimum contacts with the United States as a whole. I concur in the panel opinion but write separately to note that there are reasons to reconsider whether the personal jurisdiction limits required by the Due Process Clause of the Fifth Amendment are identical to those of the Fourteenth.

Shortly after this circuit held the same personal jurisdiction standards apply under the Fifth and Fourteenth Amendments, Livnat v. Palestinian Authority, 851 F.3d 45, 54 (D.C. Cir. 2017), the Supreme Court declared it was an “open” question whether the Fifth Amendment imposes the same due process limits as the Fourteenth, Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 582 U.S. 255, 137 S. Ct. 1773, 1783–84, 198 L.Ed.2d 395 (2017). While the parties do not raise this issue, in an appropriate case we should reassess what limits the Fifth Amendment places on the federal courts’ exercise of personal jurisdiction over foreign defendants.

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Lewis sued two Congolese officials in federal district court, alleging they imprisoned and tortured him. Lewis’s cause of action arose under the Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at note to 28 U.S.C. § 1350). To establish personal jurisdiction, he invoked Federal Rule of Civil Procedure 4(k)(2). That Rule allows a plaintiff to “establish[ ] personal jurisdiction over a defendant” who “is not subject to jurisdiction in any state’s courts of general jurisdiction” simply by “serving a summons” on him. FED. R. CIV. P. 4(k)(2); see also Atchley v. AstraZeneca UK Ltd., 22 F.4th 204, 231–32 (D.C. Cir. 2022) (explaining Rule 4(k) “is essentially a federal long-arm statute”). No party contests that Lewis has a cause of action under federal law or that Lewis properly served the Congolese defendants in compliance with Rule 4(k). The only question is whether asserting personal jurisdiction would be “consistent with the United States Constitution.” FED. R. CIV. P. 4(k)(2)(B). In federal court, that query focuses on the limits imposed by the Fifth Amendment’s Due Process Clause.

In Livnat, we determined the “usual” Fourteenth Amendment specific jurisdiction requirements also apply to the Fifth Amendment inquiry. 851 F.3d at 56. We must therefore consider whether the defendant has the requisite “minimum contacts” with “the United States as a whole.” Id. at 55; cf. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The Livnat court gave three reasons for equating the due process protections of the Fifth and Fourteenth Amendments. First, it cited the “uniform” view of our sister circuits and suggested Supreme Court precedent also dictated this result. Livnat, 851 F.3d at 54–55. Second, the court could identify no reason to distinguish the two Due Process Clauses. The plaintiffs argued that jurisdiction in the federal courts did not implicate the federalism concerns that arise when evaluating jurisdiction in state courts; however, the court rejected this argument because “personal jurisdiction is not just about federalism.” Id. at 55. Finally, the court suggested applying the same personal jurisdiction standards in both contexts would be “easier to administer.” Id. at 55–56.

All three of Livnat‘s premises have been called into question in the intervening years. First, just a few months after Livnat, the 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” as the Fourteenth Amendment imposes on state courts. Bristol-Myers, 137 S. Ct. at 1784. The Supreme Court has not yet resolved this open question, although other circuits have followed Livnat‘s reasoning. See, e.g., Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226, 234–41 (5th Cir. 2022) (en banc).

Second, recent originalist scholarship suggests there are reasons to distinguish the Fifth and Fourteenth Amendment standards. See Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 VA. L. REV. 1703 (2020). There is little (or no) evidence that courts and commentators in the Founding Era understood the Fifth Amendment’s Due Process Clause to impose a minimum contacts requirement. On the contrary, the widespread assumption was that Congress could extend federal personal jurisdiction by statute. See Douglass, 46 F.4th at 260–62 (Elrod, J., dissenting) (surveying early cases and concluding that “none lends support” to applying the minimum contacts test to determine due process limits under the Fifth Amendment).

To provide just a few examples, Justice Story explained that, if Congress had spoken clearly, it could have allowed “a subject of England, or France, or Russia … [to] be summoned from the other end of the globe to obey our process, and submit to the judgment of our courts.” Picquet v. Swan, 19 F. Cas. 609, 613 (C.C.D. Mass. 1828) (No. 11,134); see also Sachs, Jurisdiction, 106 VA. L. REV. at 1714–17 (discussing Picquet). The court refused to exercise jurisdiction over the defendant (an American expatriate), not because of any constitutional limitation, but because Congress had not provided the necessary authorization. Picquet, 19 F. Cas. at 613–15. Ten years later, the Supreme Court described Story’s reasoning as “having great force” and adopted the same approach. Toland v. Sprague, 37 U.S. (12 Pet.) 300, 328, 9 L.Ed. 1093 (1838). The prevailing understanding was that when it came to suits against foreign defendants in federal courts, the reach and limits of personal jurisdiction were governed by Congress.

Livnat applied the minimum contacts test to assess personal jurisdiction in the federal courts by importing Fourteenth Amendment due process limits into the Fifth Amendment. See Sachs, Jurisdiction, 106 VA. L. REV. at 1705 (“[C]urrent doctrine … takes the Fourteenth Amendment as given, and remakes the Fifth Amendment in its image.”). Sources of original meaning suggest this may well be a parachronism.

That leaves Livnat‘s third justification: ease of administration. But the fact that a given approach may be easy to administer does not make it legally correct. Such pragmatic considerations cannot override the proper interpretation of the Constitution.

* * *

There is substantial evidence that the Fifth Amendment does not impose the same due process limits on personal jurisdiction in the federal courts as the Fourteenth Amendment does in the state courts. A reevaluation of the Fifth Amendment’s due process protections is best undertaken by the en banc court in an appropriate case with the benefit of full briefing. Because the court today correctly applies our precedent, I concur.

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