Application for an Extension of Time to File a Petition for a Writ of Certiorari

No. 19- In the Supreme Court of the United States MARK SOKOLOW, ET AL., PETITIONERS, v. PALESTINE LIBERATION ORGANIZATION, ET AL. APPLICATION FOR AN EXTENSION OF TIME TO FILE A PETITION FOR A WRIT OF CERTIORARI To the Honorable Ruth Bader Ginsberg, Associate Justice of the Supreme Court of the United States and Circuit Justice for the United States Court of Appeals for the Second Circuit: Pursuant to this Court’s Rule 13.5, applicants/petitioners Mark Sokolow, et al., respectfully request a 60-day extension of time, to and including December 20, 2019, in which to file a petition for a writ of certiorari to the U.S. Court of Appeals for the Second Circuit. A complete list of petitioners on behalf of whom this application is submitted appears in the Appendix, infra, at 75a-76a. The court of appeals entered its order on June 3, 2019, captioned Waldman v. Palestine Liberation Org., 925 F. 3d 570 (2d Cir. 2019) (Nos. 15-3135 & 15-3151). App., infra, at 1a-12a. Petitioners’ timely petition for rehearing was denied July 23, 2019. Id. at 13a. Unless extended, the time in which to file a petition for a writ of certiorari will expire on October 21, 2019. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1254(1). 1 1. This case arises under the Anti-Terrorism Act of 1992 (ATA), which provides an express, extraterritorial private civil cause of action for U.S. citizens killed or injured by acts of international terrorism. 18 U.S.C. § 2333. a. The ATA allows “[a]ny national of the United States” injured by acts of “international terrorism”—i.e., “violent acts or acts dangerous to human life” that “occur primarily outside the territorial jurisdiction of the United States” and that would be criminal under federal or state law—to sue in federal court and seek treble damages. 18 U.S.C. §§ 2331(1), 2333(a). By expressly “provid[ing] extraterritorial jurisdiction over terrorist acts abroad against [U.S.] nationals,” Congress sought to ensure that promoters of terrorist acts that harm U.S. nationals can be brought to justice in U.S. federal court regardless where the terrorist acts occur. H.R. Rep. No. 102-1040, at 1. b. Beginning in 2000, Palestinian Authority (PA) “security” officers began executing multiple terror attacks against civilians in Israel, murdering and maiming hundreds. Many of these “security” officers were tried and convicted for organizing the bombings and shootings. Although the terrorists who perpetrated these attacks sit in jail in Israel serving multiple life sentences for murder and terrorism, they continue to draw generous PA salaries. c. Petitioners—eleven American families—sued under the ATA in the United States District Court for Southern District of New York. App., infra, at 25a, 29a-31a. The jury found that the defendants provided material support to designated Foreign Terrorist Organizations and that the defendants’ employees, acting within the scope of their employment, killed and injured plaintiffs, most of whom are U.S. citizens. The jury 2 awarded damages of $218.5 million, automatically trebled to $655.5 million under § 2333(a). Id. at 18a, 31a. The defendants appealed, challenging (as relevant) the district court’s personal jurisdiction. d. For nearly twenty-five years, courts exercised jurisdiction over the Palestine Liberation Organization (PLO) and the PA in civil ATA cases on the basis of their maintenance of a systematic and continuous presence in New York and, later, also in Washington, DC. But the Second Circuit ruled in this case that, under the Fifth Amendment, federal courts may not exercise personal jurisdiction over foreign terrorists who murder and maim Americans abroad even if they knowingly provide material support to U.S. designated Foreign Terrorist Organizations, because “[t]he bombings and shootings here occurred entirely outside the territorial jurisdiction of the United States.” App., infra, at 53a. The court added that it would not approve personal jurisdiction because “[t]here is no basis to conclude that the defendants participated in these acts in the United States or that their liability for these acts resulted from their actions that did occur in the United States.” Id. at 55a. Finally, the court said that it was not enough to support jurisdiction that the PLO and PA had injured U.S. interests and U.S. citizens. The decision drew immediate and deep criticism. (To take one example, the Harvard Law Review criticized the court for “breezing over” arguments supported by “prominent legal authorities” and failing to take into account “the congressionally articulated policy of providing jurisdiction over foreign terrorists.” Recent Cases, 130 Harv. L. Rev. 1488, 1491, 1495 (2017).) e. Petitioners sought review in this Court. Congress supported the request. In a brief filed by the House of Representatives (approved unanimously by the Bipartisan Legal 3 Advisory Group), the House explained that the Second Circuit decision “improperly cabins the broad constitutional authority of Congress to legislate extraterritorially for the protection of U.S. interests in the areas of foreign affairs and national security.” Brief for the U.S. House of Representatives as Amicus Curiae Supporting Certiorari at 1-2, Sokolow v. PLO, No. 16-1071 (Apr. 6, 2017). A brief filed by a bipartisan group of 23 Senators similarly decried the failure of the Second Circuit to “give effect to the factual and policy determinations of a co-ordinate branch of government.” Brief of U.S. Senators as Amici Curiae in Support of Petitioners at 3, Sokolow, supra (Apr. 6, 2017). This Court called for the views of the United States. 137 S. Ct. 2319. The Solicitor General recommended against accepting review, without commenting on the merits of the case, saying that “further development in the lower courts is likely to be useful.” Brief for the United States as Amicus Curiae at 17, Sokolow, supra (Feb. 22, 2018). This Court denied the petition. 138 S. Ct. 1438. 2. a. Shortly thereafter, Congress enacted the Anti-Terrorism Clarification Act of 2018 (ATCA), Pub. L. No. 115–253, 132 Stat. 3183 (codified at 18 U.S.C. § 1 note, § 2331 note, and § 2333 note). The House Judiciary Committee Report stated that ATCA’s express “purpose” was to “address[] lower court decisions” “that have allowed entities that sponsor terrorist activity against U.S. nationals overseas to avoid the jurisdiction of U.S. courts” in civil ATA cases. H.R. Rep. No. 115-858, at 3, 6 (2018). The Senate Judiciary Committee Chairman, one of the statute’s lead co-sponsors, confirmed that ATCA was intended to respond to “recent Federal court decisions that severely undermined the ability of American victims to bring terrorists to justice.” 164 Cong. Rec. S5103 (daily ed. July 19, 4 2018) (statement of Sen. Grassley). Both chambers of Congress passed the bill by unanimous consent, and the President signed it on October 3, 2018. b. ATCA provides that defendants in ATA civil actions “shall be deemed to have consented to personal jurisdiction” if they engage in specified conduct after January 31, 2019, “regardless of the date of the occurrence of the act of international terrorism.” One form of jurisdiction-creating consensual conduct is to accept assistance provided under authority of specified provisions of the Foreign Assistance Act. 18 U.S.C. § 2334(e)(1)(A). ATCA also contains a provision directed specifically to the PLO and the PA. A defendant “benefiting from a waiver or suspension” of § 1003 of the Anti-Terrorism Act of 1987, Public Law 100-204, Title X (§ 1003), is deemed to consent to personal jurisdiction if it “continues to maintain any office, headquarters, premises, or other facilities or establishments within the jurisdiction of the United States.” 18 U.S.C. § 2334(e)(1)(B). (§ 1003 makes it unlawful for “the PLO or any of its constituent groups, any successor thereto, or any agents thereof” to maintain an office or spend money within the jurisdiction of the United States, 22 U.S.C. § 5202.) The House Judiciary Committee Report explained that this portion of the new law applies to the PLO and PA if either or both “continues to maintain any office…or other facilities within the United States.” H.R. Rep. No. 115–858 at 7 & n.23 (2018). 3. a. Plaintiffs filed a motion in the Second Circuit to recall the mandate in light of the new statute. On June 3, 2019, the court denied the motion in a published decision. The court recognized “the passage of a new law”—such as ATCA—“might warrant recalling a mandate in some circumstances,” but declined to do so after construing ATCA in a manner that rendered it a dead-letter upon enactment. App., infra, at 7a. 5 b. The court held that ATCA does not apply to the PLO or PA, finding inapplicable the provision governing a defendant “benefiting from a waiver or suspension” of §1003. The court held that only a waiver authorized by another statute—one not referenced in ATCA— would meet ATCA’s requirement. Id. at 8a. The court also acknowledged that the PLO and PA use their United Nations Observer Mission in New York for non-U.N. activities. Id. at 9a. But it held that these non-U.N. activities must be disregarded because the Observer Mission “is not considered to be within the jurisdiction of the United States.” Ibid. 3. a. This case presents exceptionally important questions. By concluding that U.N. Missions are not “within the jurisdiction of the United States,” the Second Circuit created a dangerous jurisdictional vacuum at the U.N. Headquarters and at 250 U.N. Missions in New York City.

Load more