In 2011, Jewish worshippers were shot by armed gunmen at Joseph's Tomb, a holy site in the West Bank believed by many to be the burial place of the biblical patriarch. Among the victims were Ben-Yosef Livnat, who was killed, and U.S. citizens Yitzhak Safra and Natan Safra, who were wounded in the gunfire. According to the Livnats and Safras, the perpetrators of the attack were the security guards hired to protect Joseph's Tomb by the Palestinian Authority. The Palestinian Authority is a government headquartered in the West Bank city of Ramallah. The Palestinian Authority has non-member observer status in the United Nations and receives foreign aid from the United States, the European Union, and other sources. The United States does not recognize the Palestinian Authority as a government of a sovereign state. The Livnat and Safra families brought suit in federal district court seeking to hold the Palestinian Authority vicariously liable for the attack, bringing claims under both the Antiterrorism Act, 18 U.S.C. [section] 2333, and common-law tort. The families alleged that the guards who perpetrated the attack at Joseph's Tomb were acting within the scope of their employment by the Palestinian Authority, which knew that the commander of the guards had served time in Israeli prison on terrorism-related charges. *47
The district court addressed the issue of personal jurisdiction under Federal Rule of Civil Procedure 4(k)(2), concluding that the Livnats and Safras had forfeited all other statutory bases for personal jurisdiction. Applying the Due Process Clause of the Fifth Amendment, the court found that the Palestinian Authority was not "at home" in the United States and that the attack was not sufficiently directed at the United States. The Livnats and Safras timely appealed. *48
The Fifth Amendment's Due Process Clause protects defendants from "being subject to the binding judgments of a forum with which they have established no meaningful contacts, ties, or relations," and requires "fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign." Mwani v. bin Laden, 417 F.3d 1, 11 (D.C. Cir. 2005) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).
Constitutional limits on the personal jurisdiction of the courts do not protect entities that are not covered by the Due Process Clause, and the language of the Clause speaks only of "persons." U.S. CONST. amend. V ("No person shall ... be deprived of life, liberty, or property, without due process of law...."). In Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002), it was held that foreign states are not persons and are not covered by the Due Process Clause. Id. at 96.
The rule in Price--that foreign states...