Workers clean inside a cafeteria at Hebrew University in Jerusalem in 2002, hours after a bomb exploded, killing nine, including four Americans. (AP/David Guttenfelder)
A $655 million award against the Palestine Liberation Organization and the Palestinian Authority for attacks that killed or wounded members of 11 American families in Israel has been thrown out by the U.S. Court of Appeals for the Second Circuit.
The circuit held Wednesday that there was no personal jurisdiction over the action, where a jury found after a seven-week trial in 2015 that the PLO and the Authority, acting through their employees, perpetrated the attacks or provided material support for those who did.
“The terror machine gun attacks and suicide bombings that triggered this suit and victimized these plaintiffs were unquestionably horrific,” the court said. “But the federal courts cannot exercise jurisdiction in a civil case beyond the limits prescribed by the due process clause of the Constitution, no matter how horrendous the underlying attacks or morally compelling the plaintiffs’ claims.”
The decision was a big setback for lawyers who have been working for years to win damages for families under the Anti-Terrorism Act, 18 U.S.C. §2333(a). The jury before Judge George Daniels in the Southern District of New York awarded the plaintiffs $218.5 million, an amount automatically tripled to $655.5 million under the act.
Judges Pierre Leval and Christopher Droney and Southern District Judge John Koeltl, sitting by designation, said Daniels erred in finding personal jurisdiction in Sokolow v. Palestine Liberation Organization, 15-3135.
The decision rejected the arguments of Arnold & Porter partner Kent Yalowitz, who told the circuit in April that jurisdiction should lie and justice be done for the “11 American families whose loved ones were murdered and maimed by the defendants” because the goal of the PLO and the Authority was to influence the foreign policy of the United States through coercion and intimidation—a key part of the Anti-Terrorism Act.
Yalowitz said the evidence was clear that the defendants were involved in the attacks, either through their own employees or through assistance to their allies within Hamas and the al-Aqsa Martyrs Brigade (NYLJ, April 13).
But Mitchell Berger, a partner at Squire Patton Boggs, got the better of the argument, telling the judges the case law is clear that “you have to find the brunt of the injury” in the United States to sue in an American courtroom.
The Palestinian Authority said a large award would undermine its ability to govern. The U.S. government stepped in before Daniels to argue against forcing the Authority to post a large bond, saying it would weaken the legitimacy of the Authority and undermine “several decades of U.S. foreign policy.”
The case was bought by 36 plaintiffs and four estates seeking compensation for death and injuries that occurred in a series of six attacks, including the July 31, 2002, Hebrew University bombing carried out by Hamas that killed nine people, four of them U.S. citizens.
Daniels had found general jurisdiction over the PLO and the Palestinian Authority despite the U.S. Supreme Court’s decision narrowing the test for general jurisdiction in Daimler AG v. Bauman, 134 S. Ct. 746 (2014).
Writing for the court Wednesday, Koeltl said that the lower court erred in finding there was general jurisdiction, leaving the appeals court to focus on whether there was personal jurisdiction over the defendants.
Koeltl said the activities of the defendants’ mission in Washington, D.C, limited to maintaining an office, promoting the Palestinian cause in speeches and media appearances and hiring a lobbying firm “do not render the [Palestinian Authority] and the PLO ‘essentially at home’ in the United States.”
“The bombings and shootings here occurred entirely outside the territorial jurisdiction of the United States,” he said. “Thus, the question becomes: What other constitutionally sufficient connection did the commission of these torts by these defendants have to this jurisdiction?”
He said the attacks “as heinous as they were, were not sufficiently connected to the United States to provide specific personal jurisdiction in the United States.”
“In short, the defendants were liable for tortious activities that occurred outside the United States and affected United States citizens only because they were victims of indiscriminate violence that occurred abroad,” Koeltl said. “The residence or citizenship of the plaintiffs is an insufficient basis for specific jurisdiction over the defendants.”
The circuit then rejected the plaintiffs’ arguments that the attacks specifically targeted American citizens, saying the plaintiffs’ own evidence, he said, establishes that the attacks were “random and fortuitous.”
As for influencing the United States’ government, he said, “It is insufficient for purposes of due process to rely on evidence that a political organization sought to influence United States policy, without some other connection among the activities underlying the litigation, the defendants and the forum.”
“We are very gratified that the court fully accepted our clients’ consistent position that the [Palestinian Authority] and the PLO are not subject to the jurisdiction of the United States courts in these matters,” Squire Patton Boggs partner Gassan Baloul said in a statement Tuesday.