Based on precedent, we have no personal jurisdiction over Darryl Lewis’s claims because he has not plausibly claimed the required minimum contacts with the United States overall. I agree with the panel’s opinion, but write separately to note that there are Reported Mediass to reconsider whether the limits of personal jurisdiction required by the due process clause of the Fifth Amendment are identical to those of the Fourteenth.

Shortly after this circle took place, the same Fifth Amendment and Fourteenth Amendment personal jurisdiction standards apply, Livnat against the Palestinian Authority851 F.3d 45, 54 (DC Cir. 2017), the Supreme Court stated that it is an “open-ended” question as to whether the Fifth Amendment imposes the same due process limits as the Fourteenth, Bristol-Myers Squibb Co. v. Superior Ct. by Cal., 582 US 255, 137 S.Ct. 1773, 1783–84, 198 L.Ed.2d 395 (2017). While the parties do not raise this issue, in an appropriate case we should reevaluate what limits the Fifth Amendment imposes on the exercise of federal courts’ personal jurisdiction over foreign defendants.

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Lewis sued two Congolese officials in a federal district court, alleging that they imprisoned and tortured him. Lewis’ cause of action arose under the Torture Victim Protection Act 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified in note to 28 USC §1350). To establish personal jurisdiction, he invoked Federal Civil Procedure Code 4(k)(2). This rule allows a plaintiff to “Reported Medias[ ] personal jurisdiction over an accused” who is “not subject to the jurisdiction of any court of general jurisdiction of any State” simply by “serving a subpoena” on him. fed. R.CIV. P.4(k)(2); see also Atchley v AstraZeneca UK Ltd., 22 F.4th 204, 231–32 (DC Cir. 2022) (clarification of rule 4(k) “is essentially a long-armed federal statute”). Neither party disputes that Lewis has a cause of action under federal law or that Lewis properly ministered to the Congolese Defendants in accordance with Rule 4(k). The only question is whether the assertion of personal jurisdiction would be “consistent with the United States Constitution”. FED. R.CIV. p. 4(k)(2)(B). In federal court, that question centers on the limits imposed by the Fifth Amendment’s Due Process Clause.

In Livnat, we found that the “usual” specific jurisdiction requirements of the Fourteenth Amendment also apply to the Fifth Amendment investigation. 851 F.3d at 56. We must therefore assess whether the defendant has the required “minimum contacts” with “the United States as a whole”. ID. at 55; see. International Shoe Co. v. Washington, 326 US 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The Livnat The court gave three Reported Mediass for equating due process protections to the Fifth and Fourteenth Amendments. First, it cited the “unified” view of our sister circles and suggested that Supreme Court precedent also dictated that outcome. Livnat, 851 F.3d at 54–55. Second, the court could see no Reported Medias to distinguish between the two due process clauses. Plaintiffs argued that the jurisdiction of the federal courts did not imply the federalism concerns that arise when assessing the jurisdiction of state courts; However, the court rejected this argument because “personal jurisdiction does not only concern federalism”. ID. at 55. Finally, the court suggested that applying the same personal jurisdiction standards in both contexts would be “easier to administer”. ID. at 55-56.

All three of LivnatThe premises of have been called into question in recent years. First, just a few months later Livnatthe Supreme Court specifically left open “the question of whether the Fifth Amendment imposes the same limitations on the exercise of personal jurisdiction by a federal court” as the Fourteenth Amendment imposes on state courts. Bristol Myers, 137 S.Ct. at 1784. The Supreme Court has not yet ruled on this outstanding issue, although other judicial districts have followed suit Livnat‘s rationale. See eg, Douglass vs. Nippon Yusen Kabushiki Kaisha46 F.4th 226, 234-41 (5 Cir. 2022) (en banc).

Second, recent originalist research suggests that there are Reported Mediass to distinguish between Fifth and Fourteenth Amendment standards. See Stephen E Sachs, The unlimited jurisdiction of the federal courts, 106VA. L.REV. 1703 (2020). There is little (or no) evidence that courts and commentators in the founding period understood the due process clause of the Fifth Amendment as imposing a minimum requirement of contacts. On the contrary, the popular assumption was that Congress could legislate to extend personal federal jurisdiction. See Douglas46 F.4th at 260–62 (Elrod, J., dissenting) (researching early cases and concluding that “none supports the use of the minimum contact test” to establish the boundaries of Fifth Amendment due process).

To cite just a few examples, Justice Story stated that if Congress had spoken clearly, “a subject of England, France, or Russia… [to] subpoenaed from the other side of the world to obey our process and submit to the judgment of our courts.” Picket against swan, 19 F.Cas. 609, 613 (CCD Mass. 1828) (No. 11,134); see also Sachs, jurisdiction, 106VA. L.REV. c. 1714–17 (discussion picket). The court refused to exercise jurisdiction over the defendant (an American expatriate), not because of any constitutional restrictions, but because Congress had failed to grant the necessary authorization. picket, 19 F.Cas. at 613-15. Ten years later, the Supreme Court described Story’s Reported Mediasing as “of great force” and took the same approach. Toland versus Sprague, 37 US (12 Pet.) 300, 328, 9 L.Ed. 1093 (1838). The prevailing view was that in federal court cases against foreign defendants, the scope and limits of personal jurisdiction were determined by Congress.

Livnat applied the minimum contact test to assess personal jurisdiction in federal courts by having the Fourteenth Amendment import due process time limits into the Fifth Amendment. See Sachs, jurisdiction, 106VA. L.REV. around 1705 (“[C]Present doctrine…takes the Fourteenth Amendment for granted and remakes the Fifth Amendment in its image.

This works out Livnat‘s third justification: Ease of administration. But the fact that a particular approach may be easy to apply does not make it legally correct. Such pragmatic considerations cannot override the proper interpretation of the Constitution.

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There is compelling evidence that the Fifth Amendment does not impose the same limits of due process on personal jurisdiction in federal courts as the Fourteenth Amendment does in state courts. A reassessment of due process protections under the Fifth Amendment is best undertaken by the En Banc Court in an appropriate case, with the benefit of full disclosure. As the court correctly applies our precedent today, I agree.