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After the Supreme Court, the Fifth Circuit is the most fascinating court in the land. The Fifth Circuit gets lots of bad publicity for its conservative bent, but as I explained my address, the conservatives are not monolithically conservative. Case in point Stephen Douglass (no, not that Stephen Douglas)v. Nippon Yusen Kabushiki Kaishai. This dispute arose from a collision in foreign waters. A foreign corporation was sued for violating federal law in federal court. The question presented is whether the same rules that govern personal jurisdiction under the Due Process Clause of the Fourteenth Amendment apply to personal jurisdiction under the Due Process Clause of the Fifth Amendment.

The en banc court split 12-5. The majority opinion was written by Judge Jones, and was joined by Chief Judge Richman and Judges Smith, Stewart, Dennis, Southwick, Haynes, Costa, Ho, Duncan, Engelhardt, and Wilson. In dissent were Judges Elrod, Graves, Higginson, Willett, and Oldham. This case does not fall along ideological lines. Not at all. At least on the Fifth Circuit, the views on personal jurisdiction are heterodox. But beyond these right-left divides, the court's prominent originalists disagreed over how to interpret the Fifth Amendment.

The majority opinion by Judge Jones states the issue:

The Fifth Amendment due process standard governs the personal jurisdiction inquiry in this lawsuit raising federal claims in federal court. The en banc dispute centers on whether the Fifth Amendment standard mirrors the "minimum contacts" and "fair play and substantial justice" principles underlying the Fourteenth Amendment personal jurisdiction inquiry.

The majority opinion by Judge Jones followed precedent governing the Due Process Clause of the Fourteenth Amendment, and held that the foreign corporation was not "at home" in the United States. Specifically, the majority held that the same test applies for both the Fifth and Fourteenth Amendments:

We reject the plaintiffs' theory and hold that the Fifth Amendment due process test for personal jurisdiction requires the same "minimum contacts" with the United States as the Fourteenth Amendment requires with a state. Both Due Process Clauses use the same language and serve the same purpose, protecting individual liberty by guaranteeing limits on personal jurisdiction. Every court that has considered this point agrees that the standards mirror each other. The plaintiffs' rule-centric argument, that importing the Fourteenth Amendment standards into the Fifth Amendment context renders Rule 4(k)(2) a nullity, is unpersuasive and wrong.

Judge Elrod wrote the principal dissent, which was joined by Judges Graves and Willet in full, and by Judges Higginson and Oldham in part (starting at p. 39). Judge Elrod writes that the Supreme Court has "reserved" the question of whether the Due Process Clause of the Fifth Amendment may have a different meaning that the Due Process Clause of the Fourteenth Amendment with respect to personal jurisdiction.

Elrod posits that the meaning of "due process of law" is different in the Fifth and Fourteenth Amendments. That is, there was "linguistic drift" between 1791 and 1868. Here, she cites citing recent scholarship from Max Crema and Larry Solum, Steve Sachs, and others.

The relationship between the amendments' Due Process Clauses and the limits of federal courts' personal jurisdiction clearly merits "considerable elaboration." Ante at 27. Far from frivolous, this thorny topic has launched more than a few law review articles.2 Indeed, the latest originalist scholarship strongly suggests that "'due process of law' has undergone linguistic drift." Max Crema & Lawrence B. Solum, The Original Meaning of "Due Process of Law" in the Fifth Amendment, 108 Va. L. Rev. 447, 453 (2022). That is, "its meaning has changed since the First Congress proposed [the Fifth Amendment] for ratification" in 1789, and before the 39th Congress proposed the Fourteenth Amendment in 1866. Id. at 453, 461524 (examining a wide array of primary sources and conducting rigorous historical and corpus-linguistics analysis). Thus, it is quite reasonable to think that the original public meaning of the Fifth Amendment's Due Process Clause diverges from the Fourteenth Amendment's as it bears upon personal jurisdictionparticularly given the interstate-federalism principles baked into the Fourteenth Amendment.3

FN2: For just a small sampling, see generally, e.g., Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020); Jonathan Remy Nash, National Personal Jurisdiction, 68 Emory L.J. 509 (2019); Wendy Perdue, Aliens, the Internet, and "Purposeful Availment": A Reassessment of Fifth Amendment Limits on Personal Jurisdiction, 98 Nw. U. L. Rev. 455 (2004); see also Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249 (2017).

Elrod thought it proper for the lower courts to percolate this question, on which the Supreme Court has not yet brewed:

In my view, it is precisely our duty as an inferior court to percolate the arguments raised by this novel constitutional issue for eventual Supreme Court review. Cf. Dep't of Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, J., concurring in grant of stay) (noting that the percolation "process that permits the airing of competing views . . . aids this Court's own decisionmaking process"); Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780, 1784 (2019) (Thomas, J., concurring) ("[F]urther percolation may assist our review of [an] issue of first impression . . . ."). We are asked in this case to interpret the Fifth Amendment's Due Process Clause with respect to federal court personal jurisdictiona question of first impression that the Supreme Court has repeatedly declined to answer. And when we are called to interpret a constitutional provision without on-point Supreme Court guidance, we should look first to the Constitution's text, history, and structure before we borrow freely from adjacent Supreme Court jurisprudence.

The opinion addresses the dissent, briefly, in a footnote:

This majority opinion addresses the exact arguments raised by the plaintiffs consistently throughout the litigation. But for one point, we will not address the dissents' wholly novel arguments, which pointedly divorce themselves from the parties' theory of the case. Post at 47 n.5 ("I disagree with both approaches because both start not with the Fifth Amendment but with inapplicable Fourteenth Amendment case law."). By standing up for the law as it has been accepted unanimously among the circuit courts, we decline to consider adversarially untested propositions. Moreover, the principal dissent's criticism that NYK bore some burdento anticipate and analyze personal jurisdiction without any reference to well-settled case lawis simply wrong. At the very least, it is the plaintiffs' burden to establish the court's jurisdiction in response to a Rule 12(b)(2) personal jurisdiction challenge by a defendant. Johnson v. Multidata Sys. Int'l Corp., 523 F.3d 602, 609 (5th Cir. 2008). If we were to address the merits of the principal dissent's theory, however, we would note its repeated insistence that, consistent with the Fifth Amendment, Congress could pass a law to subject foreign defendants to American federal court jurisdiction for any injuries inflicted on American citizens or claims arising abroad. Whether this is correct or not, we do not assay. Moreover, we cannot analyze this theory because the dissent posits no rule or limits flowing from the Fifth Amendment. And finally, no court has adopted the dissent's view that Rule 4(k)(2) alone suffices to extend substantive personal jurisdiction to the constitutional limit, and the Rule's language alone suggests otherwise.

Judge Elrod addresses Judge Jones's footnote with another footnote that stretches more than a page. It begins:

The majority opinion's footnoted response to this dissent is unresponsive on this score: Lacking Supreme Court case law restricting federal courts' exercise of personal jurisdiction under the Fifth Amendment, NYK must convince us, as a matter of text, history, and structure, that the Fifth Amendment's Due Process Clause merely mimes the Fourteenth's as to personal jurisdiction. But NYK has made no such argument, and nor has the majority opinion.

In fact, the majority opinion expressly refuses to engage with the contrary arguments presented in this dissent, declining to address anything but "the exact arguments raised by the plaintiffs." Id. (emphasis added). Respectfully, I do not think our approach should be so blinkered. Of course we take cases as they are presented to us, but that does not mean that we must parrot parties' "exact" views in our opinions. Our duty is to resolve the appeal correctly and offer our independent explanation of the bases for our decision.

I can't do justice to Judge Elrod's extensive dissent here. It engages with all of the leading scholarship on the Due Process Clause of the Fifth Amendment. Read Part II. And in Part III, Elrod concludes that the Process Clause of the Fifth Amendment allows the district court to exercise jurisdiction:

What does the original understanding of the Fifth Amendment's Due Process Clause mean for these cases before us? The answer is really quite simple: the plaintiffs' cases should go forward. Because the Fifth Amendment's Due Process Clause, as originally understood, poses no extrinsic limit on Congress's ability to authorize expansive personal jurisdiction in federal courts, the district court had personal jurisdiction over NYK pursuant to Rule 4(k)(2).

And here is the dissent's conclusion:

The Supreme Court has never interpreted the Fifth Amendment's Due Process Clause with respect to personal jurisdiction. The Court has expressly left the question open. It is our duty to offer an answer. But the majority opinion simply copies and pastes inapplicable modern Supreme Court case law expounding on the Fourteenth Amendment, as if the Fourteenth Amendment imbues the Fifth Amendment with new meaning. In my view, we should not put new wine in an old wineskin. There is no substitute for a diligent inquiry into the original public meaning of the Fifth Amendment's Due Process Clause. As originally understood and applied (or rather, not applied), the Fifth Amendment imposed no significant restriction on Congress's ability to authorize service of process abroad, and hence, to expand federal courts' personal jurisdiction.

Judge Ho wrote a concurring opinion joined by Judge Costa that responded to the dissents by Judge Elrod (p. 28). Ho explains that reading the Due Process Clause to have different meanings in the Fifth and Fourteenth Amendments cannot be squared with the Court's incorporation doctrine:

Under the doctrine of incorporation, the Supreme Court has repeatedly instructed that we must interpret the Due Process Clause of the Fourteenth Amendment coextensively with various provisions of the Bill of Rights. And therein lies the logical challenge I see with the dissent's proposed framework. For if we accept the dissenters' theory of linguistic drift when it comes to due process, logic would presumably require that we entertain the possibility of linguistic drift in every aspect of due process. For example, what does the First Amendment require when it comes to the states? Well, we know the First Amendment might have meant one thing in 1791, but something quite different in 1868. And so too with the Second Amendment, the Fourth Amendment, the Eighth Amendment, and so on. So presumably the dissenters would apply a different body of First Amendment law, Second Amendment law, and so on, to the states as opposed to the federal government, in recognition of the possibility of linguistic drift between 1791 and 1868. But we don't do that. Because the Supreme Court has told us we can't do thatmost recently, in N.Y. State Rifle. And that's the logical problem I see with the dissent's approach. If Supreme Court precedent requires us to apply the same standard of "due process" to the states and the federal government when it comes to other constitutional rights like the First and Second Amendments, what's the logic in applying different standards when it comes to due process itself? If we're being principled about linguistic drift, we presumably wouldn't limit it to just the Fifth Amendmentor just the Due Process Clause of the Fifth Amendment. We would either allow for linguistic drift with respect to every provision of the Bill of Rightsor to none of them. To my mind, logical fidelity to Supreme Court precedent would seem to suggest that the answer must be none.

Judge Ho finds that fidelity to Supreme Court precedent, even for an originalist judge, compels this ruling:

But the members of this court all agree that fidelity to Supreme Court precedent must trump fidelity to text and original public meaning. And that means reading precedent faithfully. "Lower court judges don't have license to adopt a cramped reading of a case in order to functionally overrule it." NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (quotations omitted). See also Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU J.L. & Liberty 44, 51 (2019) ("Of course, judges can always draw razorthin distinctions and contend that a particular issue is not governed by a nonoriginalist precedent. But judges should resist this temptation."). "[L]ogic [may] demand[] that we extend an [allegedly] atextual body of precedent in order to preserve rationality or consistency in the law." Williams, 18 F.4th at 821 (Ho, J., concurring).

Perhaps the Supreme Court will adopt the two-tier approach in the future. But for now, Judge Ho will stick with precedent:

Perhaps the Supreme Court will someday switch gears and embrace the dissent's view that due process under the Fifth Amendment is indeed different from due process under the Fourteenth Amendment. Perhaps the Court will one day hold that fidelity to text and original public meaning necessitates the complexity of developing two distinct bodies of federal constitutional rightsone against the feds and one against the states. But until then, I will stick with the simplicity of the approach adopted by the majority of my colleaguesnot to mention all of the circuits that have previously addressed the issue.

Judge Oldham wrote a solo dissent. He does not follow the "linguistic drift" argument advanced by Judge Elrod. Rather, he made yet another claim about the original meaning of the Fifth Amendment:

This case should be resolved by two propositions. First, the Supreme Court has never answeredin fact, it has expressly left "open""the question whether the Fifth Amendment imposes the same restrictions [as the Fourteenth] on the exercise of personal jurisdiction by a federal court." Bristol-Myers Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1784 (2017); see also J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 885 (2011) (plurality op.); Omni Cap. Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5 (1987). Second, as originally understood, the Fifth Amendment did not impose any limits on the personal jurisdiction of the federal courts. Instead, it was up to Congress to impose such limits by statute. See, e.g., Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703, 171727 (2020); Picquet v. Swan, 19 F. Cas. 609, 615 (C.C.D. Mass. 1828) (No. 11,134) (Story, J.); see also ante, at 5461 (Elrod, J., dissenting). That should've been the end of the case. With all respect for my esteemed colleagues, I do not understand how this case implicates (1) "linguistic drift." See ante, at 4344, 63 (Elrod, J., dissenting). Nor do I see how the Supreme Court's (2) "longstanding incorporation jurisprudence" or (3) unenumerated-rights precedents prevent us from adopting the originalist answer here. See ante, at 3132 (Ho, J., concurring).

Judge Ho also responds to Judge Oldham's dissent:

So we agree that there is one body of due process law, not two. Here's where we part company, then: If we're agreed that there's only a single body of due process law, then I don't see how we can ignore Supreme Court precedent under Fourteenth Amendment due process in a case involving Fifth Amendment due process. And that's where my reference to the doctrine of incorporation comes in. Judge Oldham dismisses my invocation of the incorporation doctrine on the ground that that is a doctrine of substantive due processwhereas this is a personal jurisdiction case, which implicates procedural due process. See id. at 102. He makes the same observation about the judicially-created right to abortion examined in Carhart. See id. at 103. He's of course entirely right that both the incorporation doctrine generally, and abortion in particular, are creatures of substantive due process. But I don't see why the substantive/procedural due process distinction should make any difference here.

On the Fifth Circuit, three prominent originalists (Elrod, Oldham, and Ho) offer differing accounts of the Due Process Clause of the Fifth Amendment. What a fascinating court.

See more here:
The En Banc Fifth Circuit Sharply Divides On Personal Jurisdiction and the Fifth Amendment - Reason