[00:00:00] Speaker 02: The fourth case, Werfel versus the Palestine Liberation Organization. [00:00:38] Speaker 02: By the way, on this last case, I know you all are dividing your time, and because there's different entities, Paul, if it's okay, for the first advocate who wanted eight minutes, we're going to just put the clock on for eight minutes. [00:01:08] Speaker 00: May it please the court? [00:01:19] Speaker 00: Asher Perlin and Dan Kalischer on behalf of the plaintiffs. [00:01:24] Speaker 00: The plaintiffs are the victims and the survivors and family members of the victims of the terrorist attack at issue. [00:01:29] Speaker 00: In this case, the decision below is fundamentally flawed for several reasons. [00:01:37] Speaker 00: There are [00:01:38] Speaker 00: at least four paths to reversal. [00:01:41] Speaker 00: I'd like to provide the court with a quick roadmap. [00:01:46] Speaker 00: The first issue, which will be addressed by the government, is the constitutionality of the PSJA VTA. [00:01:57] Speaker 00: We will address the remaining three issues. [00:02:00] Speaker 00: Those are, one, at the lower court, erred by extending due process rights, [00:02:06] Speaker 00: to these defendants, which are international foreign governments and political actors. [00:02:15] Speaker 00: Two, that the district court erred in refusing to exercise specific jurisdiction over these defendants. [00:02:22] Speaker 00: And three, that the class action mechanism of rule 23.2 provides a sound basis for personal jurisdiction over these defendants. [00:02:35] Speaker 00: I would like to reserve two minutes for rebuttal and if the court has specific issues, questions for me on the PSJA BTA, I would prefer to save them for the rebuttal because time is limited. [00:02:54] Speaker 00: The most conventional way to dispose of this case is to find that these defendants are subject to specific jurisdiction. [00:03:04] Speaker 00: As alleged in the complaint, [00:03:06] Speaker 00: The defendants have engaged in extensive inform activities, including PR, lobbying, running an office, and other messaging activities that worked in conjunction hand in glove with the terrorism of the defendants. [00:03:33] Speaker 00: The allegation is, [00:03:36] Speaker 00: that the two are intertwined, inextricably intertwined, and neither would have been effective without the other. [00:03:46] Speaker 02: Let me ask you a question about that. [00:03:48] Speaker 02: Now, there is no allegation that the PA or PLO have used for propaganda purposes the attack on November 18, 2014, correct? [00:04:05] Speaker 00: The PLO has not. [00:04:07] Speaker 00: There is no allegation that says that they have, that they use it for propaganda purposes. [00:04:11] Speaker 02: And I know you've argued that Ford should be narrowly construed, but how is there, apart from Ford, a relationship that you've adequately alleged between the PA, well, it wouldn't be the PA anyway, right? [00:04:27] Speaker 02: It would just be the PLO. [00:04:30] Speaker 02: Their propaganda activity in the United States [00:04:35] Speaker 02: and the support of the terrorist attack. [00:04:42] Speaker 00: Well, I mean, whether they used this particular attack for propaganda going forward isn't really the question on this specific jurisdiction issue, because that relates to their activity leading up to the attack. [00:04:54] Speaker 00: What were their activities in the forum such that they could expect to be held into court for carrying out this attack? [00:05:01] Speaker 00: And they did engage in extensive, [00:05:04] Speaker 00: both the PA and the PLO engage in extensive PR, publicity, lobbying activities in the United States. [00:05:14] Speaker 00: So that's the relevant, also just to clarify, the relevant time period for US activities for these defendants for the specific jurisdiction question is leading up to the 2014 attack. [00:05:27] Speaker 00: The US activities under the PSJABTA relate to activities that occurred after the trigger dates [00:05:34] Speaker 00: for those activities, which is in 2020. [00:05:38] Speaker 00: So our argument is that the activities leading up to this attack contributed to the terrorism and gave meaning. [00:05:45] Speaker 00: One of the elements of the ATA is that the interactive international terrorism appear to be intended to influence a government or governments. [00:05:58] Speaker 00: And so a terrorist attack without messaging may not satisfy that standard. [00:06:05] Speaker 00: But the terrorist attack that's carried out in conjunction with shows the very purpose of that attack. [00:06:16] Speaker 00: So we do think that Hood provides a basis. [00:06:21] Speaker 00: Hood affected a sea change in the jurisdiction of a specific jurisdiction. [00:06:27] Speaker 00: It said that this court recognized, sorry, Ford Motors, [00:06:35] Speaker 00: was a sea change, could, versus American Auto Care, this court's decision held, we need not decide whether the district court's analysis would have been correct under the law established at the time of its judgment. [00:06:49] Speaker 00: What we can say is that after the judgment, the Supreme Court made clear that a causal connection is not required. [00:06:57] Speaker 00: So before, whether you were talking about related to or arising out of, before Ford Motor, [00:07:04] Speaker 00: a plaintiff had to establish a causal relationship. [00:07:07] Speaker 00: After Ford Motors, it need only be, the US, the inform activities, need only be relevant to the claim of the plaintiffs. [00:07:18] Speaker 00: That was a significant change, and all of the decisions cited by the defendants finding that there was no subject matter jurisdiction, no specific jurisdiction over these defendants were decided under the pre-Ford Motor standards, [00:07:33] Speaker 00: They all required causation, and some of them required that the plaintiffs prove that their injuries, the inform activities caused their particular injuries. [00:07:48] Speaker 00: None of those was required after Ford Motor. [00:07:51] Speaker 00: My time is very limited. [00:07:54] Speaker 00: I want to move on. [00:07:56] Speaker 00: Our Rule 23.2 argument, I think, is very compelling. [00:07:59] Speaker 00: I think the district court and the defendants never [00:08:01] Speaker 00: the overwhelming weight of authority that we cite, they skirt the issue, and I think the brief speaks for itself. [00:08:11] Speaker 00: And that provides a very sound basis for jurisdiction. [00:08:16] Speaker 00: Finally, the due process clause. [00:08:18] Speaker 02: I don't mean to interrupt you, but you do know that this includes the time you wanted to save for rebuttal. [00:08:26] Speaker 02: I'm not trying to stop you, I just wanted to make sure you do that. [00:08:30] Speaker 02: I'll save the rest for a bottle. [00:08:37] Speaker 00: The Due Process Clause was never intended to cover defendants like these, international governments, whether sovereign or not, [00:08:55] Speaker 00: international political actors that purport to be the official representatives of a foreign people. [00:09:02] Speaker 00: And the briefs cover that very thoroughly. [00:09:04] Speaker 00: I'll save the rest for a bundle. [00:09:05] Speaker 02: Okay. [00:09:06] Speaker 00: Thank you. [00:09:20] Speaker 02: Mr. Dixon, so I think you have seven minutes. [00:09:23] Speaker 05: Yes, Your Honor, thank you. [00:09:24] Speaker 05: Good morning and may it please the court, Courtney Dixon for the United States, which intervened to defend the PSJA VTA's constitutionality. [00:09:31] Speaker 05: I'm hoping to reserve two minutes of my time for rebuttal. [00:09:35] Speaker 05: The district court erred in holding that the PSJA VTA violates Fifth Amendment due process. [00:09:40] Speaker 05: The statute sets out in explicit terms what actions these unique foreign non-sovereign defendants, if taken after a specified date, [00:09:49] Speaker 05: will be considered consent by those entities to personal jurisdiction in US courts for a particular class of claims. [00:09:57] Speaker 05: Civil claims under the Anti-Terrorism Act of 1992 brought to address injuries to US nationals caused by acts of international terrorism. [00:10:07] Speaker 05: In holding to the contrary orders, the District Court ignored the limitations in the PSJA VTA and also ignored the unique foreign affairs context in which it was enacted. [00:10:15] Speaker 05: And as we note in our brief, the Second Circuit, [00:10:18] Speaker 05: also in a recent decision held that PSJA VTA unconstitutional made the same errors. [00:10:24] Speaker 05: I'll note that United States in that case and the private parties in that case have petitioned for cert in the Supreme Court from that court's decision. [00:10:32] Speaker 05: My understanding is that's gonna be conferenced later this week on the 22nd. [00:10:36] Speaker 05: And obviously if we learn that the court grants cert or otherwise, we would promptly let the court know. [00:10:42] Speaker 05: I'm happy to address, you know, obviously any particular aspects of the district court's decision. [00:10:46] Speaker 05: I'll note, you know, the district court largely rested his conclusion that Congress cannot deem any conduct with no connection to the forum whatsoever to be consent to jurisdiction. [00:10:58] Speaker 05: That's not what Congress did in the PSJA VTA. [00:11:00] Speaker 05: The Congress chose conduct that has a fair and reasonable connection to the forum, particularly, again, in light of this unique foreign affairs context in which this case is enacted and we think [00:11:09] Speaker 05: That's an important part of the analysis that the district court overlooked. [00:11:13] Speaker 01: What is exactly, you say that the, is it the Seventh Circuit that they applied for a cert? [00:11:20] Speaker 05: The Second Circuit, you're under the full decision, yes. [00:11:23] Speaker 01: My fault here. [00:11:25] Speaker 01: Exactly, are these issues exactly the same ones that are being presented in? [00:11:30] Speaker 05: The PSJA VTA's constitutionality is squarely presented there. [00:11:34] Speaker 05: In different cases, there are also private plaintiffs, and I'm not totally aware of all of the arguments from the private plaintiffs are overlapping. [00:11:41] Speaker 05: But what the Second Circuit held in the full decision is that the PSJA VTA is unconstitutional under the Fifth Amendment, largely on the same grounds the district court invoked here. [00:11:51] Speaker 05: We petitioned for rehearing on Bonk in that case. [00:11:54] Speaker 05: Judge Menashe dissented from their denial of rehearing on Bonk and we think persuasively explained [00:12:00] Speaker 05: you know, echoing many of the arguments that we presented in our briefs here, why the panel's decision was incorrect. [00:12:06] Speaker 01: But is an answer from that, is that going to resolve completely the case that we have? [00:12:13] Speaker 05: If the Supreme Court grants cert and on the questions presented, I think it would bear on, yes, the same question here, whether the PSJA VTA is constitutional. [00:12:25] Speaker 04: Do you have an opinion on [00:12:28] Speaker 04: whether the Fifth Amendment involves the same standards for minimum contacts as the courts have developed under the Fourteenth Amendment? [00:12:40] Speaker 05: So two things. [00:12:41] Speaker 05: First, this court has held in the, I don't know exactly how to say it, the PA versus Belt South decision that the same fairness and reasonableness considerations that apply in the Fourteenth Amendment also apply in the Fifth Amendment context. [00:12:56] Speaker 05: But I think that that court decision recognizes and it cites an 11th Circuit decision that recognizes also that there's no reason to think that the same analysis applies mechanically in both cases and that makes sense. [00:13:09] Speaker 05: I mean a large portion of the Supreme Court's cases in the 14th Amendment context emphasize that part of that doctrine is about federalism. [00:13:19] Speaker 05: The limited and mutually exclusive sovereignty of states reaching out to exercise jurisdictions over citizens [00:13:25] Speaker 05: of other states, and one of the questions is, is the exercise of jurisdiction reasonable in our federal system of government? [00:13:32] Speaker 05: Congress sits in a different position with respect to foreign entities, particularly foreign entities such as the defendants here. [00:13:39] Speaker 05: The United States sits in a different position in the international sphere. [00:13:42] Speaker 05: There's no reason to think that the analysis would be identical in both contexts. [00:13:48] Speaker 04: Your Honor. [00:13:48] Speaker 04: Generally, we look at, when we're looking at constitutional language or [00:13:55] Speaker 04: statutes, we look at the language that's used and we would be looking at identical language. [00:14:05] Speaker 05: And that's why this court's decision in Bell South says that fairness and reasonableness are relevant in the Fifth Amendment too. [00:14:11] Speaker 05: But that doesn't mean if you're thinking about what is fair and reasonable for Congress to enact with respect to these unique foreign defendants that have [00:14:19] Speaker 05: history with the United States, there are several statutes addressing the extent to which these entities can operate and conduct a range of activities in the United States that has long been premised on many of the same concerns that motivated enactment of this statute. [00:14:33] Speaker 05: And as I noted, I mean, yes, concepts of fairness are reasonable, so they're very broad. [00:14:37] Speaker 05: Cashing that out, the Supreme Court, in its 14th Amendment decisions at least, have looked again at questions of the interest of the forum, the interest of this [00:14:46] Speaker 05: states that have limited sovereignty, there's no reason to think that all cashes out the same in the context of the Fifth Amendment. [00:14:53] Speaker 04: Right, it seems like at least the Fifth Circuit has looked at the two clauses and interpreted them consistently. [00:15:03] Speaker 05: You mean referring to the Douglas decision in the Fifth Circuit? [00:15:06] Speaker 05: Your Honor, I think that's what, you know, there was a lot of separate writings in that case. [00:15:11] Speaker 05: We're not asking this Court again to [00:15:13] Speaker 05: to chart out any new grounds from what it did in its Bell South decision, just simply to recognize that when you are looking at concepts of fairness and reasonableness, that is the touchstone of the, at least in the 14th Amendment, looking at the same questions in the 5th Amendment. [00:15:27] Speaker 05: You look at the forum, the particular defendant, the circumstances of the case here, you know, Congress has made judgments in the international sphere. [00:15:34] Speaker 05: with respect to defendants that do have a unique relationship and history with the United States government. [00:15:39] Speaker 05: The due process analysis, the Supreme Court emphasized in Mallory, it's a skewed any kind of mechanical or formulaic test in favor of a flexible approach that does look to these broad concepts. [00:15:50] Speaker 05: So applying those broad concepts, yes, you would consider all of the circumstances, and that's why I think, again, there's no reason to think that you would get exactly the same outcome in both circumstances. [00:15:59] Speaker 05: I see that I've run over some of my time that I was hoping to reserve for rebuttal. [00:16:03] Speaker 05: but I'm happy to answer any other questions that the court has. [00:16:05] Speaker 05: I apologize. [00:16:06] Speaker 02: Thank you very much, Your Honors. [00:16:27] Speaker 03: Good morning and may it please the court. [00:16:29] Speaker 03: I'm Mitchell Berger on behalf of the Appellees. [00:16:32] Speaker 03: My headline point is that the PSJVTA is an imposed jurisdiction statute that's masquerading as a consent jurisdiction statute, but it fails due process either way. [00:16:46] Speaker 03: So the Supreme Court in the Boxsite case, which some people call the International Insurance Corporation of Ireland, that's going to use too much of my time, so I'll call it Boxsite. [00:16:56] Speaker 03: But Boxsite is reaffirmed by the Supreme Court recently in Mallory, provides the due process test [00:17:02] Speaker 03: for consent or deemed consent to jurisdiction and that test applies here. [00:17:08] Speaker 03: What Bauxite requires is reaffirmed in Mallory is that the defendant must engage in conduct that supports a presumption that the defendant has submitted it to the jurisdiction of the court. [00:17:22] Speaker 02: Comma, whether voluntary or not. [00:17:26] Speaker 03: Whether voluntary or not, but of course [00:17:28] Speaker 03: And I'm glad you raised that Judge Baccarat because one of the arguments the plaintiffs make, but the government doesn't make, is that knowing involuntary doesn't apply here. [00:17:37] Speaker 03: We know that can't be correct because the Supreme Court subsequently, in the wellness case, said it is critical in determining deemed consent to jurisdiction that the conduct and the consent be knowing and voluntary. [00:17:52] Speaker 03: So what bauxite means when it says voluntary or not in my reading of the case, [00:17:58] Speaker 03: And mine's the least important one compared to the three of you. [00:18:02] Speaker 03: But what it means is courts are empowered to infer from voluntary conduct that a defendant has submitted to jurisdiction. [00:18:10] Speaker 03: But the test remains the same. [00:18:13] Speaker 03: And what Bauxite itself said is that conduct has to be material to the issue of jurisdiction. [00:18:20] Speaker 03: So what happened? [00:18:21] Speaker 02: Yes. [00:18:21] Speaker 02: In other words, we have to look and see whether or not the guy driving in stay [00:18:27] Speaker 02: really was intending to use the highway with cognizance of the fact that by using the state highway, he or she is consenting to jurisdiction within that state. [00:18:38] Speaker 03: Well, I think it has, and I think all of these are objective tests. [00:18:41] Speaker 03: You don't have to look into the head of the driver it has. [00:18:43] Speaker 03: What you have to know is their conduct, looking objectively at the whole setup and what the Supreme Court said it has, and what it has said, for example, in Mallory is the same thing, which is, look, if I have a quid pro quo, [00:18:56] Speaker 03: If I give you something and I tell you that has jurisdictional strings attached, you drive on my roads, you consent to jurisdiction here, then the conduct, that quid pro quo conduct, necessarily reflects the submission of jurisdiction. [00:19:08] Speaker 03: We don't have that here. [00:19:09] Speaker 03: And that's my fundamental point. [00:19:11] Speaker 03: Why not? [00:19:12] Speaker 03: Because there is, as the argument for the Supreme Court revealed and as the Mallory decision revealed, what is required is the antecedent authority [00:19:23] Speaker 03: of the forum to bestow the benefits. [00:19:25] Speaker 03: Clearly, that existed in Hess, right? [00:19:27] Speaker 03: The state can give you a driver's license. [00:19:29] Speaker 03: The state can allow you to drive on the roads. [00:19:31] Speaker 03: That doesn't exist here. [00:19:33] Speaker 03: That is the point the Second Circuit made in full. [00:19:35] Speaker 02: Well, in full, let's say, let me change the facts. [00:19:38] Speaker 02: Let's say the government says, PA, if you sign a document, here you are consenting to jurisdiction within the 50 states. [00:19:52] Speaker 02: Well, you know, the act of signing is equivalent to the act of, like at Mallory, for example, of registering to do business in Pennsylvania or driving on the highway in Hiss. [00:20:06] Speaker 02: So what is it, conceptually, that differentiates the conduct here from the conduct in Hiss and Mallory? [00:20:14] Speaker 03: Yeah, so respectfully, that is an incomplete formulation of Mallory, because what Mallory says is two things. [00:20:20] Speaker 03: A formality. [00:20:21] Speaker 03: I signed a paper. [00:20:22] Speaker 03: with jurisdictional strings attached. [00:20:25] Speaker 03: I got something for signing that paper. [00:20:27] Speaker 02: And now, Ray, he got nothing for signing that piece of paper. [00:20:30] Speaker 02: Pennsylvania had a different statute unrelated to the statute that Justice Forsage was relying on that outlined what corporations can do within Pennsylvania. [00:20:42] Speaker 03: Well, that is the point, I think, that was argued by Justice Barrett in her dissent that because the quid pro quo is expressed in two separate statutes, [00:20:52] Speaker 03: that that wasn't germane, but that view didn't prevail. [00:20:55] Speaker 03: What prevailed was the view, well, it's a narrow opinion, of course, it only stands for one thing, which is that Pennsylvania fires still good law, but what Justice Gorsuch said, my language about jurisdictional strings attached, that's his language. [00:21:08] Speaker 03: He's the one that said that Norfolk Southern entered into this formality and agreed that they could do business in the form with jurisdictional strings attached. [00:21:20] Speaker 03: What we don't have in [00:21:22] Speaker 03: the PSJBTA is any similar antecedent authority. [00:21:26] Speaker 03: And this is the point that the Second Circuit made, which is it simply, the PSJBTA simply takes conduct that has regularly been declared to be constitutionally insufficient to support jurisdiction, waved a legislative magic wand and said henceforth if you engage [00:21:43] Speaker 03: in this jurisdictionally insignificant conduct, it's now jurisdictionally insignificant. [00:21:47] Speaker 02: Doesn't that run squarely in the face of what Justice Gorsuch unequivocally said in Mallory, and that is that there are three bases for jurisdiction. [00:21:59] Speaker 02: There's general jurisdiction, there's specific jurisdiction, and then there's implied consent. [00:22:04] Speaker 02: Implied consent, by definition, doesn't necessarily have to satisfy the predicates for general or specific jurisdiction. [00:22:11] Speaker 03: Absolutely. [00:22:12] Speaker 03: And that's not my argument. [00:22:13] Speaker 03: And I want to be clear about my argument. [00:22:14] Speaker 03: My argument is that what bauxite requires, right? [00:22:18] Speaker 03: So we know bauxite is good law because bauxite was not a narrow plurality opinion. [00:22:23] Speaker 03: But what Mallory said is our guidepost here is when we have a legislative presumption of consent, same thing we have here, that the test is the conduct material to jurisdiction. [00:22:36] Speaker 03: You can find that at page 705 of the decision in bauxite. [00:22:41] Speaker 03: And my point, and this is my only point Judge Baccarat, I'm not saying that the court is handcuffed by a specific jurisdiction decision. [00:22:48] Speaker 03: What I'm saying is, if you're using a barometer, as Bauxite requires, to say is this conduct material to the issue of jurisdiction, and before that barometer is applied, the courts have said this conduct is not material to jurisdiction, then that helps answer what is otherwise candidly a fairly squishy question under Bauxite. [00:23:09] Speaker 03: It's a bit circular, right? [00:23:10] Speaker 03: Bauxite said the conduct has to support a presumption of submission. [00:23:14] Speaker 03: Well, what does that mean? [00:23:15] Speaker 03: And what it then explains is it means that the conduct has to be material to jurisdiction. [00:23:21] Speaker 03: Well, what does that mean? [00:23:22] Speaker 03: Bauxite, I think, tells us, right? [00:23:24] Speaker 03: Bauxite involved a refusal to produce jurisdictional discovery. [00:23:29] Speaker 03: What the court said is, well, that's plainly material to the issue of jurisdiction, right? [00:23:33] Speaker 03: Because they're supposed to produce facts in discovery that say, [00:23:37] Speaker 03: whether they've operated in the jurisdiction or not, but because the conduct is material to jurisdiction, we can engage in a presumption that that's what the evidence would have shown. [00:23:47] Speaker 03: When you have courts, the D.C. [00:23:49] Speaker 03: Circuit, in three or four cases, and I'd like your question to Mr. Perlin, would clearly evoke the holding of the Kleman case, so I don't need to tell Your Honor about the D.C. [00:23:58] Speaker 03: Circuit decisions, four of which applied to the same specific jurisdiction theory here, or Waldman-Socolo case in the Second Circuit. [00:24:06] Speaker 03: Every one of them has said that the PSJVTA predicate conduct is not material to the issue of jurisdiction. [00:24:14] Speaker 03: And we don't have to guess at what Congress did. [00:24:16] Speaker 03: Congress did two things to make it clear that what they were trying to do was take conduct declared jurisdictionally immaterial by the D.C. [00:24:24] Speaker 03: Circuit and the Second Circuit and to say, tell you what, going forward, that same jurisdictionally immaterial conduct now will be deemed to be consent. [00:24:35] Speaker 03: We are not the ones blurring the standards. [00:24:37] Speaker 03: And I think this is the point Judge Bianco made in his concurrence in the denial of rehearing on Bach. [00:24:42] Speaker 03: He said fundamentally both the government and the plaintiffs blur the distinct requirements of imposed specific jurisdiction and consent to jurisdiction. [00:24:53] Speaker 03: And they do it in precisely the way that is the mirror image of Your Honor's question, which is they say it is we can simply say that we can [00:25:03] Speaker 03: Going forward, we can declare jurisdictionally immaterial conduct to be jurisdictionally immaterial, but Bauxite says absolutely not. [00:25:11] Speaker 03: And that's the point. [00:25:13] Speaker 03: We have three buckets that Bauxite could fit into. [00:25:18] Speaker 03: And again, this was mentioned by the Second Circuit in full and in our brief, which is the recurring scenario of litigation conduct material to jurisdiction. [00:25:29] Speaker 03: That's Bauxite. [00:25:30] Speaker 03: We don't have that here. [00:25:31] Speaker 03: No litigation conduct that's involved. [00:25:33] Speaker 03: You have Mallory. [00:25:34] Speaker 03: Mallory is, again, just a score such as words, activity in the forum with jurisdictional strings attached. [00:25:44] Speaker 03: And the third is kind of the residual exception, the bucket that says, okay, if those two don't apply, does it look, walk, and talk like consent to jurisdiction? [00:25:53] Speaker 03: And that's my key point, which is, I'm listening to courts handcuffed [00:25:57] Speaker 03: by what was decided at the Second Circuit or the D.C. [00:26:01] Speaker 03: Circuit in a specific jurisdiction context, but I am saying that box that requires the court to find jurisdictional immaterial conduct. [00:26:09] Speaker 03: We could argue until the cows come home about what that is. [00:26:12] Speaker 02: Is conducting activity within the forum, is that sufficient? [00:26:16] Speaker 03: Only, the answer in this case is no. [00:26:18] Speaker 02: Driving on the highway, we know is. [00:26:20] Speaker 02: I'm sorry, Your Honor. [00:26:21] Speaker 02: We know driving on the highway. [00:26:22] Speaker 03: Absolutely. [00:26:23] Speaker 03: But I think you've helped me answer your own question. [00:26:26] Speaker 03: I'd like to do that, which is the key point. [00:26:29] Speaker 03: And I listened attentively to the Mallory argument before the Supreme Court, and it's expressed in the opinion, although not in these words, which is there has to be antecedent authority on the part of the forum to give you the benefit, to let you drive on the roads, to let you register to do business, to be a director of a Delaware corporation. [00:26:48] Speaker 03: The key point [00:26:49] Speaker 03: in full is that when it comes to the U.S. [00:26:53] Speaker 03: activity, which respectfully is not before this Court because the District Court didn't reach it. [00:26:58] Speaker 03: The District Court engaged in an as-applied analysis focused solely on the payments part. [00:27:03] Speaker 03: But entertaining your Honor's question and trying to answer it, the United States government long before the PSJA VTA surrendered antecedent authority to exclude the Palestinians from the United States when they engage in UN activity. [00:27:18] Speaker 03: It did so in the 1940s through the UN headquarters agreement. [00:27:22] Speaker 03: That's what the Southern District of New York decided in the U.S. [00:27:25] Speaker 03: versus PLO case. [00:27:26] Speaker 03: So what we have here is the United States saying, even though we have no authority to regulate this U.S. [00:27:34] Speaker 03: activity or to exclude you from attending the UN, any more than it could exclude Canada or Iran or [00:27:41] Speaker 03: North Korea or anybody who's unfavored by the United States, you know, we can't exclude you from the United States. [00:27:47] Speaker 02: Does the United States government have the authority to exclude the Palestinian authority or the PLO from conducting activities unrelated to the establishment or maintenance of an office in the United States? [00:28:03] Speaker 03: It has surrendered that authority as to UN activities. [00:28:06] Speaker 02: And our argument... Where in... Can you cite me any law that says that the Palestinian Authority or the PLO is prohibited from conducting any activity in the United States unrelated to the office that's allowed to conduct activity related to the United Nations? [00:28:30] Speaker 03: Well, I would cite three things. [00:28:32] Speaker 03: So first of all, I would cite the 1987 Anti-Terrorism Act. [00:28:36] Speaker 02: Then I would cite the Palestinian... That's for the establishment or maintenance of an office, isn't it? [00:28:41] Speaker 03: No, also activities. [00:28:42] Speaker 03: Basically, it prohibits... It's not my interpretation. [00:28:46] Speaker 03: The case to which I would refer, Your Honor, is the United States versus PLO, which is picked up in all of the previous decisions in the Second Circuit, [00:28:58] Speaker 03: It's the Southern District of New York case which correctly referred to the 1987 ATA as a wide gauge restriction on PLO activity in the United States other than UN activity. [00:29:11] Speaker 03: You can find that at 695 F SUP at 1471. [00:29:16] Speaker 03: But alongside that because, although your honor helped me with this point in your question to Mr. Perlin, that's the PLO. [00:29:24] Speaker 03: But then they say, well, the PA is still conducting activity in the United States. [00:29:28] Speaker 03: Well, it's not. [00:29:29] Speaker 03: And don't take my word for it. [00:29:30] Speaker 03: When the United States signed the Oslo, when the United States supervised the Oslo Accords between Israel and the PLO, it recognized the PLO and only the PLO as the overseas representative of the Palestinian people. [00:29:44] Speaker 03: Judge Bianco made this point in his concurrence in the denial of rehearing en banc in full, which is, we're only dealing with PLO activity. [00:29:53] Speaker 03: But it doesn't matter because [00:29:55] Speaker 03: The Palestinian Anti-Terrorism Act of 2006, which we cite in our briefs, but which can be found at 120 Statute 3318, operates to the same effect as the 1987 ATA. [00:30:11] Speaker 03: But here's the tiebreaker, which is government counsel sit up and surely will stand up again and rebuttal. [00:30:16] Speaker 03: The government says in its reply brief at pages 10 to 11 that it has, and I'm quoting here, [00:30:22] Speaker 03: long imposed restrictions on defendants, operations and activities in the United States," close quote, which continue to, and again, quoting, generally prohibit the PA and PLO from engaging in a range of activities here," close quote. [00:30:39] Speaker 03: So the answer to your activities question is two statutes plus a government concession on that point. [00:30:45] Speaker 03: And because of that prohibition, and then [00:30:49] Speaker 03: I see I'm almost running out of time. [00:30:51] Speaker 03: I want to touch briefly on Mr. Perlin's points, if the court will give me the time. [00:30:56] Speaker 03: But the key point here is, because the United States long ago surrendered its ability to keep the Palestinians from attending the UN, and because we contended that the district court never reached the question that all of the alleged activity here is UN activity, there is no analog to Hess [00:31:18] Speaker 03: or any other case where there's antecedent authority. [00:31:21] Speaker 03: Now, what's, your honor would ask me, sure, well give me, for instance, when it would apply, and the answer is history tells us. [00:31:28] Speaker 03: I apologize I'm running over, but I'll only finish the thought. [00:31:31] Speaker 03: Until 2018, when President Trump closed the PLO mission to the United States, there was in Washington, D.C., an embassy, a mission to the United States. [00:31:44] Speaker 03: That clearly, if it were reopened today, [00:31:47] Speaker 03: would be activity in the United States that's not U.N. [00:31:50] Speaker 03: related, that would trip the U.S. [00:31:53] Speaker 03: activities provision. [00:31:55] Speaker 03: And indeed, that was the kind of thing picked up in the previous statute, which did have the quid pro quo model, the ADCA. [00:32:04] Speaker 03: One last point on the PSJVTA, and then I'll race through Mr. Perlman's point. [00:32:11] Speaker 03: Judge Baldock asked the question about the pending petition for certiorari on the PSJVTA. [00:32:16] Speaker 03: And indeed, according to the Supreme Court clerk's office in the docket, that petition is scheduled to go to conference before the justices this Friday. [00:32:25] Speaker 03: If it's not relisted, we'll know Monday, if cert is granted. [00:32:29] Speaker 03: And then we had argued to the Supreme Court in opposition that this court's views are consequential. [00:32:36] Speaker 03: And we'll know if we have a circuit split or the like. [00:32:39] Speaker 03: The government has argued it frankly, and I'm not trying to be snarky, they said it's a waste of time [00:32:44] Speaker 03: for anybody else to think about this issue because the Supreme Court is going to deal with it. [00:32:47] Speaker 03: That's not our view because unlike the Fold case, which the government has argued is a facial challenge to the PSJBTA, we have here an as-applied challenge. [00:33:00] Speaker 03: Judge Gallagher expressly said he was considering constitutionality only as applied to the payments prompt. [00:33:07] Speaker 03: Quick couple of points on the other arguments [00:33:12] Speaker 03: Judge Carson, you asked the question about Fifth Amendment versus Fourteenth Amendment, and I would say this court already answered that question in P, P-E-A-Y, the Bell South case, where it said at 203, F, Third, pages 12, 11 to 12, 12, that the Fifth Amendment and the Fourteenth Amendment are, and I'm quoting here, virtually identical, close quote, in protecting liberty. [00:33:41] Speaker 03: But even after that, in the Klein decision out of this court, which this is how we apply P, the factors that it recites are essentially the same and includes minimum context. [00:33:54] Speaker 03: So I don't think there's a serious argument that in this circuit there is a material difference between Fifth Amendment and Fourteenth Amendment jurisdictional process. [00:34:03] Speaker 03: Quickly on specific jurisdiction. [00:34:07] Speaker 03: Look, everybody's entitled to file a lawsuit wherever they want. [00:34:09] Speaker 03: But the reason why we're here on specific jurisdiction is because of forum shopping. [00:34:14] Speaker 03: The theory alleged for specific jurisdiction in this case, which involves alleged U.S. [00:34:21] Speaker 03: advocacy, is a carbon copy of the theory considered and rejected on specific jurisdiction by the D.C. [00:34:29] Speaker 03: Circuit and the Second Circuit. [00:34:31] Speaker 03: At least two of the named plaintiffs in this case are New York residents that could have filed this case in the [00:34:36] Speaker 03: the Second Circuit, they brought it here because they don't want to be bound by the dispositive precedent. [00:34:41] Speaker 03: But Judge Baccarat, your question about was there publicity, I believe it was yours and I apologize to the other members of the panel if somebody else asked it, was there any publicizing of this particular attack? [00:34:59] Speaker 03: as a result of, you know, in an effort to change U.S. [00:35:02] Speaker 03: policy, that's the point the D.C. [00:35:04] Speaker 03: Circuit picked up in Klemen. [00:35:05] Speaker 03: It said, regardless of whatever you think about this ethereal notion that maybe U.S. [00:35:11] Speaker 03: advocacy is linked to violence, if there's no effort to try to tie this specific attack, then that's not a next. [00:35:18] Speaker 02: They argue on pages 37 and 38 of their opening briefs at 18 and 19 of the reply brief that that is exactly why [00:35:26] Speaker 02: Ford doesn't apply is because otherwise there would have had to have been evidence that Ford had targeted in the advertising and promotional activities within that state and the Supreme Court had not done that in Ford and so there doesn't have to necessarily be for the related two clause a linkage between the activity in this particular tortious injury. [00:35:53] Speaker 03: There has to be more. [00:35:56] Speaker 03: My response is that we know what this circuit thinks about Ford because the Hood decision of this court, to which Mr. Perlin adverted, explains how this circuit has been applying Ford. [00:36:08] Speaker 03: And what number one makes clear is there has to be torsious activity in the forum, which Ford, by the way, required. [00:36:14] Speaker 03: But here's what Hood says. [00:36:16] Speaker 03: Hood said that the relates to prom of Ford requires the plaintiff to show that he was quoting [00:36:23] Speaker 03: injured by activity essentially identical to activity that the defendant directs at other forum residents. [00:36:31] Speaker 03: That's at 21F4, 1224. [00:36:34] Speaker 03: And further, that this court said in hood that four is not satisfied unless the defendant's activity, quote, regularly include activity substantially the same as that giving rise to the claim against it, 21F4, 1225. [00:36:49] Speaker 03: How do I apply that? [00:36:50] Speaker 03: That means that [00:36:52] Speaker 03: There has to be torsious activity and all they say is that, well, even it wasn't directed at them that the PA and PLO engaged in US advocacy in the United States and that somehow that's like what they've done. [00:37:09] Speaker 03: The problem is it's not torsious and that's the fulcrum. [00:37:12] Speaker 03: Ford requires torsious activity, Hood requires torsious activity. [00:37:17] Speaker 03: The same US advocacy has been held not to be torsious [00:37:21] Speaker 03: As the Second Circuit pointed out in Waldman 1, 835, F3rd at 342, U.S. [00:37:28] Speaker 03: advocacy is not connected to the wrongs that harm the plaintiffs because it's not tortious. [00:37:34] Speaker 03: Mr. Perlin has said- We're gonna have to, yeah, I'll let you finish up. [00:37:38] Speaker 03: Has said, you know, that it violates the ATA, it doesn't. [00:37:42] Speaker 03: They read the material element out of the ATA, which is intimidation and coercion. [00:37:46] Speaker 03: Second Circuit said, advocacy in the United States in the past by the Palestinians [00:37:51] Speaker 03: is advocacy. [00:37:52] Speaker 03: It doesn't involve intimidation or coercion. [00:37:54] Speaker 03: Thank you for letting me run over. [00:37:56] Speaker 03: We respectfully ask that the court affirm the decision of the district court. [00:38:00] Speaker 02: Thank you. [00:38:00] Speaker 02: Paul, since we let him go over, let's give three and a half minutes to each of the appellants for their report. [00:38:16] Speaker 02: In addition to that, I think we have a little bit of time. [00:38:28] Speaker 00: First, I'm going to start with Mr. Berger's last point. [00:38:31] Speaker 00: Ford Motor does not require informed torsive activity. [00:38:36] Speaker 00: The activity of Ford Motor in the forum was advertising and selling cars. [00:38:41] Speaker 00: It wasn't torsive activity. [00:38:45] Speaker 00: Ford Motor does say that you don't require causation, a causal link between the informed activity and the claim. [00:38:54] Speaker 00: And you don't need to show a link between the informed activity and the injury to the plaintiff. [00:39:03] Speaker 00: What it does say is that the informed activity has to be relevant to the claim. [00:39:10] Speaker 00: And that standard is flexible, depending on the context. [00:39:16] Speaker 00: The second of all, I would say that if [00:39:22] Speaker 00: due process rights are extended to government and foreign political entities like the PA and the PLO. [00:39:31] Speaker 00: Who is next? [00:39:33] Speaker 00: ISIS, al-Qaeda, the Houthis? [00:39:37] Speaker 00: Are they also entitled to due process rights? [00:39:41] Speaker 00: These are not the types of entities of international actors who are intended to be covered by the due process clause. [00:39:55] Speaker 00: In terms of form shopping, we filed the suit in the District of Colorado because one of the plaintiffs lives in Boulder. [00:40:04] Speaker 00: Most of the plaintiffs live abroad. [00:40:06] Speaker 00: Most of them are American citizens, but there's a plaintiff here that lives in Boulder and that's why we filed here. [00:40:14] Speaker 00: Finally, Mr. Berger spoke about knowing involuntary activity triggering the PSJA VTA. [00:40:28] Speaker 00: There's no requirement that a defendant wants to be subject to jurisdiction. [00:40:33] Speaker 00: There's a requirement that the defendant act with the knowledge of the consequences of their conduct, that by engaging in this activity, they are expressing their consent to jurisdiction. [00:40:45] Speaker 00: And that's what the PA and the PLO have done, whether it's through the pay to slay policy, where they had notice [00:40:57] Speaker 00: that PING, Terrorist Murderers of American Citizens, will subject them to jurisdiction in American courts. [00:41:08] Speaker 00: They knew about that. [00:41:09] Speaker 00: They knew that the date passed, the trigger date passed, and they continued to engage in those activities. [00:41:16] Speaker 00: That's enough. [00:41:17] Speaker 02: Was it, well, the pay for slay, was that the PLO or the PA? [00:41:24] Speaker 00: It was both. [00:41:25] Speaker 02: You know, because one of the difficulties that I had was both in the complaint as well as in the briefing, it seemed to me that you all paint with somewhat of a broad brush about the PA and the PLO and they are obviously distinct entities. [00:41:42] Speaker 00: They are distinct entities and I think we tried at least to distinguish the two. [00:41:45] Speaker 00: I think the defendants tried to conflate the two where it's convenient. [00:41:50] Speaker 00: We tried to say that the PA is a foreign [00:41:55] Speaker 00: government, and the PLO is a foreign political entity that purports to be the exclusive representative of the Palestinian people. [00:42:06] Speaker 02: The PA, I think you said, was international. [00:42:09] Speaker 02: I think you've been domestic, right? [00:42:11] Speaker 00: I'm sorry? [00:42:11] Speaker 02: The PA is a domestic. [00:42:13] Speaker 00: I meant international from the point of view of the American courts. [00:42:17] Speaker 00: OK. [00:42:17] Speaker 00: It's not. [00:42:18] Speaker 00: It is a foreign government, right? [00:42:22] Speaker 00: But the PA and the PLO engaged in US activities. [00:42:26] Speaker 00: The PA was not invited to the United Nations, so they can't rely on the United Nations defense, UN activities defense for their US activities. [00:42:41] Speaker 00: They're non-existent. [00:42:43] Speaker 00: The amended complaint alleges facts that demonstrate that both defendants engaged in US activities and Mr. Berger's denials [00:42:53] Speaker 00: in court cannot refute those facts. [00:42:57] Speaker 00: Thank you. [00:42:57] Speaker 00: Thank you, Your Honors. [00:43:09] Speaker 05: Good morning. [00:43:10] Speaker 05: Defendants say that the activities prong of the PSJA VTA is not an issue here. [00:43:14] Speaker 05: I don't take the, I don't understand the district court to have made findings one way or the other as to whether that prong [00:43:19] Speaker 05: was satisfied and the United States is not taking a position on whether that prong is satisfied here. [00:43:24] Speaker 05: But the district court did conclude that the statute was unconstitutional wholesale. [00:43:28] Speaker 05: So I do believe that that question is before the court. [00:43:31] Speaker 02: But they did point out that you acknowledged in your brief that any activity by the PA in the United States is illegal. [00:43:44] Speaker 05: The United States has the authority to prohibit a range of conduct by those entities [00:43:49] Speaker 05: in the United States. [00:43:50] Speaker 05: In many cases, it has done so. [00:43:52] Speaker 05: Those are subject to executive and statutory waivers. [00:43:54] Speaker 05: But that only underscores that the activities brought as constitutional comports with it that I meant to process. [00:43:59] Speaker 02: Well, I understand that. [00:44:00] Speaker 02: I had thought that the PA and the PLO were prohibited from maintaining or establishing an office in the United States, but that they could otherwise conduct activities. [00:44:09] Speaker 02: But I think I was wrong about that. [00:44:12] Speaker 05: So there's a statute addressing the PA maintaining facilities in the United States. [00:44:16] Speaker 05: The prohibitions on the PLO are broader. [00:44:20] Speaker 05: But in any event, I don't think defendants to be taking the fundamental, to be contesting the fundamental point that the United States does have broad authority in this area to define the extent to which the PA and PLO can operate in the United States. [00:44:34] Speaker 05: And within their own theory, Your Honor, that comports with Fifth Amendment to process. [00:44:37] Speaker 05: I mean, they say that if you have the antecedent authority to exclude, you can condition conducting activities in the forum. [00:44:44] Speaker 05: So again, under their own theory, the activity sprung satisfies [00:44:48] Speaker 05: due process. [00:44:49] Speaker 05: I think, of course, we think they're wrong that that kind of reciprocal exchange of benefits is required. [00:44:55] Speaker 05: Judge Baccarac, you noted the statutes at issue in Mallory. [00:44:57] Speaker 05: You're correct that those statutes weren't phrased in the sense of there's some kind of explicit exchange. [00:45:04] Speaker 05: They set out conduct and then separate statutes provided that you're registering in the state. [00:45:09] Speaker 05: The state court could exercise jurisdiction over them on any claim. [00:45:13] Speaker 05: So in that case, by virtue of the registration in the forum, Pennsylvania could exercise jurisdiction over a claim from a Virginia resident over a cause of action that arose out of state. [00:45:23] Speaker 05: And this court held that that complied with that amendment due process. [00:45:27] Speaker 05: And many other arguments of the defendants run head first into Mallory. [00:45:31] Speaker 05: They claim this is jurisdiction imposed by a statute. [00:45:34] Speaker 05: The dissent raised similar arguments in Mallory that did not carry the day [00:45:39] Speaker 05: with the majority. [00:45:40] Speaker 05: Similarly, the defendant in Mallory argued he had not really consented to suit in the forum, but Justice Gorsuch and his opinion, the other concurring opinions, emphasized that the statute was clear and the defendant had taken actions knowingly and voluntarily that were under the statute considered consent to jurisdiction. [00:45:58] Speaker 05: If there are no further questions, we rest on the arguments in our brief. [00:46:05] Speaker 05: Thank you very much. [00:46:07] Speaker 02: This matter was very well presented both in your briefs and in oral argument today. [00:46:13] Speaker 02: I thought your advocacy for both sides was really quite extraordinary and helpful. [00:46:19] Speaker 02: Court is adjourned until nine o'clock tomorrow.