Thirteen years after suing the Palestine Liberation Organization and the Palestinian Authority—and winning a $655 million jury award in 2015—the American victims and estates of victims of a series of bombings and shootings in Israel are asking the justices to overturn a federal appeals court decision that jettisoned them out of court.
In Sokolow v. Palestine Liberation Organization & Palestinian Authority, the victims—members of 11 American families—bring to the high court a bevy of big-name lawyers and substantial friend-of-the-court support. The case could present a delicate foreign policy question for the Trump administration.
Former George W. Bush solicitor general Theodore Olson of Gibson, Dunn & Crutcher is the counsel of record on the petition for the victims. Kent Yalowitz of Arnold & Porter Kaye Scholer, the victims’ trial and appellate counsel, was also on the petition.
Ted Olson, of Gibson, Dunn & Crutcher.(Photo: Diego M. Radzinschi/ALM)
Sidley Austin’s Richard Klingler, former general counsel to the Bush National Security Council, represents a bipartisan group of 23 senators, including Senate Judiciary Chairman Charles Grassley, R-Iowa, and Senate Minority Leader Charles Schumer, D-New York.
House of Representatives general counsel Thomas Hungar, a former Gibson Dunn partner, represents that entire chamber, whose Bipartisan Legal Advisory Group unanimously authorized the amicus brief. Eleven former federal officials, including two attorneys general, an FBI director and State Department general counsels, are on a brief by Zuckerman Spaeder’s Adam Fotiades.
Whether the Trump administration will throw its weight behind the victims’ petition may not be known for some months. The petition for review is still in the early stage of the court’s process. But the justices have the ability to call for the views of the solicitor general.
Following the 2015 jury award in Sokolow, the Obama Justice Department filed a statement of interest with the district court on the amount of bond that might be required of the PLO and Palestinian Authority pending the appeal to the U.S. Court of Appeals for the Second Circuit. The department said it “strongly supports” civil remedies for American victims of terrorism but also raised “significant concerns about the harms that could arise if the court were to impose a bond that severely compromised the Palestinian Authority’s ability to operate as a governmental authority.”
Gibson Dunn’s Olson had little sympathy for any financial repercussions the case may have on the PLO and Palestinian Authority.
“Congress really wanted to provide a remedy for Americans being targeted or victims of terrorism abroad,” Olson said in an interview. “There’s specific legislation so there is absolute clarity here.”
The PLO, which argued against jurisdiction in the district court and in the Second Circuit, is represented by Mitchell Berger of Squire Patton Boggs. Berger has until May 23 to respond to the Sokolow petition.
Circuit overturned $655M judgment
The legislation is the Anti-Terrorism Act, enacted in 1992 largely in response to the PLO’s killing of U.S. citizen Leon Klinghoffer, who was shot and pushed overboard in his wheelchair while aboard an Italian cruise ship. The law contains a civil remedies provision allowing “[a]ny national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs” to sue and recover treble damages in “any appropriate district court of the United States.”
In 2015, after a seven-week trial, a jury found the Palestinian Authority liable for six of seven attacks between 2001 and 2004 that killed dozens and injured many more, including a number of Americans. The jury awarded the plaintiffs $218.5 million, subsequently trebled to $655.5 million.
A three-judge panel of the Second Circuit in August vacated the judgment and denied a petition for rehearing and rehearing en banc.
The Second Circuit said there was no general personal jurisdiction over the PLO and Palestinian Authority because, despite having an office in Washington, they were not “at home” in the United States—the Supreme Court’s test for personal jurisdiction.
The appellate court also held there was no specific personal jurisdiction because the attacks were not “specifically targeted [at] United States citizens” and the attackers did not have the “specific aim” of “targeting the United States.” That some U.S. citizens were being attacked and killed was an insufficient basis for specific jurisdiction.
Olson argued in his petition that the appellate court made two major mistakes. First, he said, it extended Fifth Amendment due process protections, which only apply to “persons,” to the PLO and Palestinian Authority “solely because the executive has declined to recognize those governments as sovereigns.”
Nothing in the Fifth Amendment’s text or history or the high court’s case law, writes Olson, “justifies according greater constitutional safeguards to foreign governments that this Nation has not recognized than those it has.”
Olson also argued the appellate court improperly held that the Fourteenth Amendment due process standard for jurisdiction was the same for the Fifth Amendment due process clause governing a federal court case involving federal power.
“What the Second Circuit has done is to overrule the statute. It is a nullity,” Olson said. “It’s kind of ironical that a foreign country wouldn’t have constitutional rights but a foreign entity—not even a country—would have. It makes no sense.”
And it makes no sense to Grassley, the principal sponsor of the act.
In a statement April 11, Grassley said: “U.S. victims of international terrorism should be able to seek justice in U.S. courts against those responsible, no matter where the attacks occurred. The Second Circuit’s decision disregarded the central purpose of the Antiterrorism Act, and could leave U.S. victims of terror abroad without important tools to seek justice. The Supreme Court should review this case and restore Congress’ action to hold terrorists accountable.”
When the act was being considered by Congress in 1990, the State Department and the Justice Department supported it, Zuckerman’s Fotiades wrote in the amicus brief for former federal officials. The signatories include John Ashcroft, Richard Thornburgh, Louis Freeh and Abraham Sofaer.
The high court has had a regular diet of personal jurisdiction challenges in recent terms, some involving the Alien Tort Act and others involving state court power to exercise jurisdiction over nonresident defendants. The justices have not been sympathetic to opening the courthouse doors to foreign claims. In two arguments this month, the justices will again tackle jurisdictional issues: Bristol-Myers Squibb v. Superior Court of California, and BNSF Railway v. Tyrrell.
Because of the Anti-Terrorism Act, “I do think the court is going to look at this quite a bit differently,” Olson said. The case, he said, boils down to: “Do you get away with [these acts] if you just do it as a band of thugs or pirates?”