WASHINGTON, D.C. – Yesterday, America First Legal (AFL), alongside Boyden Gray PLLC, filed an amicus brief in support of requests by the Trump Administration and American victims of Palestinian terrorism that the U.S. Supreme Court reverses an erroneous Second Circuit decision striking down the Promoting Security and Justice for Victims of Terrorism Act and restore terror victims’ ability to seek compensation for their injuries.
Terror attacks by the Palestinian Authority and the Palestine Liberation Organization have killed and injured hundreds of U.S. nationals, including Taylor Force, the son of AFL’s clients Stuart and Robbie Force, and AFL client Sari Singer.
The Anti-Terrorism Act of 1992 provides a private right of action for the victims of Palestinian terrorism. For 25 years, it rightly enabled victims to hold terrorists and their sponsors accountable in civil actions in U.S. courts.
However, in 2016, the Second Circuit held that the Due Process Clause of the Fifth Amendment forbids the exercise of personal jurisdiction in civil cases if the defendant’s conduct occurs outside the United States. In 2019, Congress passed the Promoting Security and Justice for Victims of Terrorism Act to close the Second Circuit’s loophole and ensure that the Palestinian Authority and the Palestine Liberation Organization are liable for their crimes. But, in 2023, the Second Circuit again immunized the Palestinians from liability, holding that Congress had facially violated the Fifth Amendment’s Due Process Clause; en banc review was denied on May 10, 2024, and the Supreme Court granted certiorari on December 4, 2024.
The petitioners in this case include the Trump Administration and a group of victims, including:
- Alan Bauer and his seven-year-old son, who were walking down a crowded street when a suicide bomber directed by a lieutenant in the Palestinian Authority’s intelligence service blew himself up, sending shrapnel through the boy’s brain.
- The wife and children of Scott Goldberg, who was murdered by a Palestinian Authority police officer in a suicide bombing (the Palestinian Authority gave the killer a hero’s funeral).
- The parents of four students who were killed by a massive bomb detonated in a university cafeteria at lunchtime (the parents learned about the attack while at home in the United States, some by recognizing the bodies or personal effects of their children on the television news).
- The wife of Ari Fuld, an American citizen and father of four, who sacrificed his own life to stop a Palestinian terrorist’s stabbing spree.
Drawing on its own Taylor Force Act litigation and Judge Stephen Menashi’s dissent, AFL argues that the Second Circuit misapplied controlling Supreme Court precedent and, citing Justice Robert Jackson, misconstrued the Due Process clause by wrongfully creating new rights for foreign corporations.
AFL further argues that the Second Circuit majority opinion erroneously and inappropriately disregarded findings by Congress and the President that funding to Palestinian terrorism is the source behind their operations. Congress enacted a law crafting a very specific solution to enable American victims and their families to obtain justice and to strengthen deterrence by imposing financial consequences on those who commit, support, and facilitate Palestinian terrorism; that law should be in effect.
Statement from Reed D. Rubinstein, America First Legal Senior Vice President:
“Judge Menashi got it right — the Second Circuit’s decision lacks a basis in the Constitution and cannot be reconciled with Supreme Court precedent. Furthermore, Congress has repeatedly adopted legislation making it clear that the policy of the federal government is that the Palestine Liberation Organization and the Palestinian Authority are subject to personal jurisdiction in the federal courts, and that civil damages are an important tool in the fight against international terrorism. Yet the Second Circuit misapplied the law, ignored Executive Branch foreign policy prerogatives, and, most egregiously, created rights for foreign corporations that the Due Process Clause does not supply. The Second Circuit’s decision is nothing more or less than purposive judicial activism, and it should be reversed,” said Reed D. Rubinstein.
Read the amicus brief here.
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