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United States: Appellate Court Orders Dismissal of Palestinian Suicide Bomb Case on Procedural Grounds

(May 27, 2020) On April 14, 2020, the Court of Appeals for the District of Columbia Circuit determined that civil claims against the Palestinian Authority and the Palestine Liberation Organization (the Palestinian defendants) by victims of a suicide bombing could not withstand a procedural challenge to personal jurisdiction. (Shatsky v. Palestine Liberation Org., No. 17-7168, slip op. (Apr. 14, 2020).)

Underlying Lawsuit

The plaintiffs are victims and relatives of victims of a 2002 suicide bombing in the West Bank. They allege that the Popular Front for the Liberation of Palestine planned and executed the bombing, but that the Palestinian defendants are liable for the attack because their support of the Popular Front enabled the bombing. The claims against the Palestinian defendants were brought under the Anti-Terrorism Act.

The lawsuit was commenced in 2002 in the District Court for the District of Columbia. The case initially went through over a decade of procedural complications. The Palestinian defendants defaulted twice for failing to participate in the litigation but were ultimately successful in their efforts to vacate the defaults. During the same period, the Palestinian defendants asserted (through formal motions and informally) that the claims against them should be dismissed for lack of personal jurisdiction because they lacked the “minimum contacts” with the District of Columbia and the United States required by the Due Process Clause. The District Court repeatedly denied dismissal for lack of personal jurisdiction. By 2011, the Palestinian defendants had formally answered the suit and were participating in the litigation. The case proceeded through two years of discovery. In 2013, the Palestinian defendants moved for summary judgment on the merits without raising a procedural challenge to personal jurisdiction.

While the Palestinian defendants’ summary judgment motion was pending, the Supreme Court issued an opinion that clarified the standard for exercising personal jurisdiction over a nonresident corporation or entity. (Daimler AG v. Bauman, 571 U.S. 117 (2014).) Absent exceptional circumstances, that standard is met only when the corporation has a “home” in the forum—that is, a “formal place of incorporation or principal place of business.” On the basis of the clarified standard, the Palestinian defendants moved for reconsideration of their motion to dismiss for lack of personal jurisdiction. The District Court denied reconsideration because the Palestinian defendants had “repeatedly manifested” consent to the Court’s jurisdiction and had thereby forfeited their objection to personal jurisdiction. Nevertheless, in 2017, the District Court granted the Palestinian defendants’ summary judgment motion on the merits, holding that no reasonable jury could find that they had proximately caused the bombing. The plaintiffs appealed to the Circuit Court.

Appellate Review of Personal Jurisdiction

Despite the plaintiffs’ appeal on the merits, the Circuit Court proceeded to reconsider the Palestinian defendants’ long-running argument that the District Court lacked personal jurisdiction over them. After determining that the procedural issue could be properly considered on appeal, the Court addressed the determinative question of whether the Palestinian defendants’ conduct during the litigation amounted to forfeiture of their objection to personal jurisdiction—in other words, did their tactical shift to litigating the case on the merits mean that they had relinquished their procedural challenge? The Court decided that they had not, stating that the Palestinian defendants’ “full litigation of the issue [of personal jurisdiction] at the outset of the case, preservation of the defense in their answer, and efforts twice to seek post-default reconsideration of the district court’s adverse ruling sufficed to preserve the claim.”

Following succinct analysis, the Court concluded that the Palestinian defendants were clearly not at “home” in the District of Columbia or the United States per the standard set by the Supreme Court, as their headquarters, officials, and activities are all in the West Bank. Further, earlier cases against the Palestinian defendants precedentially established that they are not subject to personal jurisdiction in the United States. Having concluded that the District Court never had personal jurisdiction over the Palestinian defendants at any time during the litigation, the Circuit Court vacated the District Court’s summary judgment decision on the merits in favor of the Palestinian defendants and sent the matter down to the District Court with instructions to dismiss the case against the Palestinian defendants for lack of personal jurisdiction.