Fuld v. Palestine Liberation Organization, 82 F.4th 74 (2d Cir. 2023), rev'd and remanded, 606 U.S. 1 (2025) was decided by the United States Court of Appeals for the Second Circuit on September 8, 2023 (No. 22-76-cv (L), 22-496-cv (Con)). The Second Circuit affirmed the dismissal, holding the PSJVTA's deemed-consent provision inconsistent with Fifth Amendment due process, so the PLO and PA could not be 'deemed to have consented' under 18 U.S.C. § 2334(e)(1). This holding did not survive. The Supreme Court granted certiorari (No. 24-20, consolidated with No. 24-151, United States v. PLO) and on June 20, 2025 reversed and remanded, its judgment line reading '82 F. 4th 64 (second judgment) and 74 (first judgment), reversed and remanded.' Chief Justice Roberts wrote for the Court; the syllabus records the holding that the PSJVTA's personal jurisdiction provision does not violate the Fifth Amendment because it reasonably ties jurisdiction to conduct involving the United States and implicating foreign policy matters entrusted to the political branches, with Justice Thomas concurring in the judgment.

The question before the court

May Congress create personal jurisdiction over a foreign non-sovereign entity by declaring that specified post-enactment conduct will be 'deemed' consent to suit, consistent with the Fifth Amendment's Due Process Clause?

The governing rule

The Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA), Pub. L. No. 116-94, § 903(c), 133 Stat. 2534, 3082, codified at 18 U.S.C. § 2334(e), provides that the PLO and the Palestinian Authority 'shall be deemed to have consented to personal jurisdiction' in any civil action under the Anti-Terrorism Act, 18 U.S.C. § 2333(a), (d)(2), if after enactment they make payments to designees or families of terrorists who injured or killed a U.S. national, or undertake activities within the United States. Because neither entity is recognized by the United States as a sovereign, both hold Fifth Amendment due process rights, and any assertion of personal jurisdiction must satisfy the Due Process Clause. Consent is an independent basis for jurisdiction, but only where it is genuinely manifested — by contract or forum-selection clause, by stipulation, or through litigation-related conduct. See Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703-05 (1982); Mallory v. Norfolk Southern Ry., 600 U.S. 122 (2023). Dismissal for want of personal jurisdiction proceeds under Fed. R. Civ. P. 12(b)(2).

How the court applied it

The panel started from Waldman I, 835 F.3d 317 (2d Cir. 2016), which had already held that neither general nor specific personal jurisdiction reached the PLO or the PA in ATA suits over attacks abroad, and that both defendants — unrecognized as sovereign by the United States — are entitled to due process protection. Congress responded with the PSJVTA, which the court read as a deliberate legislative effort to manufacture the one basis Waldman I had not foreclosed: consent. The court then asked what consent actually is. It catalogued the recognized forms — freely negotiated forum-selection clauses, stipulations, voluntary appearance, forfeiture by failing to raise a timely Rule 12(h)(1) objection, and Rule 37 sanctions for defying jurisdictional discovery. Each involves a defendant's own submission to a court's authority or its conduct within the litigation itself. The PSJVTA's predicates fit none of them. Paying prisoner and martyr stipends abroad, or maintaining an office in the United States, are activities unrelated to the forum's adjudicative authority; labeling them 'consent' is a legislative fiat rather than a defendant's agreement. Drawing on Insurance Corp. of Ireland's distinction between litigation-related conduct and 'mere assertions of power' over a defendant, the panel held that Congress cannot convert unrelated conduct into consent by definitional decree. The statute therefore exceeded the Fifth Amendment's limits, and the Rule 12(b)(2) dismissal stood.

What the court concluded

The Second Circuit affirmed the dismissal, holding the PSJVTA's deemed-consent provision inconsistent with Fifth Amendment due process, so the PLO and PA could not be 'deemed to have consented' under 18 U.S.C. § 2334(e)(1). This holding did not survive. The Supreme Court granted certiorari (No. 24-20, consolidated with No. 24-151, United States v. PLO) and on June 20, 2025 reversed and remanded, its judgment line reading '82 F. 4th 64 (second judgment) and 74 (first judgment), reversed and remanded.' Chief Justice Roberts wrote for the Court; the syllabus records the holding that the PSJVTA's personal jurisdiction provision does not violate the Fifth Amendment because it reasonably ties jurisdiction to conduct involving the United States and implicating foreign policy matters entrusted to the political branches, with Justice Thomas concurring in the judgment.

From the opinion

Why it matters for cyber conflict

Fuld is the test case for whether Congress can legislate a forum into existence for victims of foreign-directed attacks, including cyber operations run through a non-sovereign proxy that no minimum-contacts analysis would reach. The Second Circuit said no and the Supreme Court said yes, so a statute keyed to a foreign entity's U.S.-touching conduct is now a live route to jurisdiction over the sponsors of a state-backed intrusion.

Editorial note: this case note was drafted with AI assistance by the JLCW Research Desk, checked against the text of the opinion, and reviewed by a human editor before publication. Every quotation above is carried through from the opinion itself. See our editing policy.

Read the opinion: Fuld v. Palestine Liberation Organization on CourtListener. This note is a summary prepared by the Journal, not legal advice, and not a substitute for the opinion itself.

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