Take the Fifth

Designated for publication

• Huskey v. Jones, 19-60588, appeal from N.D. Miss.
  • Stewart, J. (Higginbotham, Stewart, Wilson), prisoner suit
  • Reversing summary judgment dismissing plaintiff’s suit arising from conduct while he was incarcerated at the Mississippi State Penitentiary.
  • The Court held that the plaintiff showed a genuine issue of fact as to the availability of administrative remedies.

• Douglass v. Nippon Yusen Kabushiki Kaisha, 20-30382, c/w Alcide v. Nippon Yusen Kabushiki Kaisha, 20-30379, appeal from E.D. La.
  • Jones, J. (en banc; joined by Richman, Smith, Stewart, Dennis, Southwick, Costa, Ho, Duncan, Engelhardt, Wilson, JJ.; Haynes, J., concurring in judgment only); Ho, J., concurring (joined by Costa, J.); Elrod, J., dissenting (joined in full by Graves, and Willett, JJ, and in part by Higginson and Oldham, JJ.); Higginson, J., dissenting; Oldham, J., dissenting; personal jurisdiction
  • Affirming district court’s dismissal of plaintiffs’ suits against foreign corporation for lack of personal jurisdiction, holding that the foreign corporation was not “at home” in the United States, and finding that the plaintiffs had foresworn that their claims arise from or relate to the foreign corporation’s business activities in the United States.
  • These suits arose from the collision of the defendant foreign corporation’s (NYK) Philippine-flagged cargo ship with a U.S. Naval vessel in Japanese territorial waters, where that cargo ship was on an intra-Asia trade route. Approximately ten percent of NYK’s shipping/logistics business involves operations in the United States and North America. The district court dismissed the suits for lack of personal jurisdiction, finding that NYK did not have sufficient contacts with the United States to justify the exercise of jurisdiction. A panel of the Court affirmed that judgment, holding it was bound by precedent in Patterson v. Aker Solutions Inc., 826 F.3d 231 (5th Cir. 2016), but observing that the federalism concerns developed in the Fourteenth Amendment context for due process analysis of personal jurisdiction should be irrelevant in the Fifth Amendment context applicable to exercise of jurisdiction over federal claims against foreign entities.
  • The Court held first that the NYK, as a foreign corporation, nevertheless enjoys Fifth Amendment due process protection in the course of litigation in the United States.
  • The Court then held that Fed. R. Civ. P. 4(k) is merely a procedural rule, but that the source of the due process analysis is the Constitution itself, to which the rule is subordinate. “No doubt service of a summons under Rule 4(k)(2) establishes personal jurisdiction when procedurally authorized by the Federal Rules and consistent with the Constitution. But as the rule expresses, the efficacy of service remains subject to the constitutional question whether a defendant is amenable to jurisdiction.”
  • The Court then held that the proper standard is that the Fifth Amendment due process test mirrors the Fourteenth Amendment’s due process test.
  • The Court rejected the plaintiffs’ proposed test that personal jurisdiction under the Fifth Amendment could rest merely on a finding of continuous and systematic contacts, which the Court held impermissibly conflated the general and specific jurisdiction analyses. The Court held that the uniting purpose between the Fifth and Fourteenth Amendment due process analyses was “protecting individual liberty by guaranteeing limits on personal jurisdiction. … No doubt federalism is immaterial under the Fifth Amendment, but the plaintiffs’ myopic emphasis on federalism misses the very core of due process.”
  • Judge Ho concurred, noting that the majority’s “approach is not only sensible as a textual matter—it also makes for a simpler body of federal constitutional law. Our legal system is already complex enough for litigants and lawyers, without additionally forcing people to navigate two distinct bodies of federal constitutional rights, depending on who’s on the right side of the ‘v.'” He wrote separately to address the lead dissent’s argument that the meaning of “due process” may have shifted between the time of the drafting of the Fifth Amendment in 1791 and the drafting of the Fourteenth Amendment in 1868.
  • Judge Elrod dissented. “Today’s result is as needless as it is confounding: The majority opinion fails to prove—as a matter of the Fifth Amendment’s text, history, and structure—the existence of a principled limit on Congress’s ability to authorize federal courts’ personal jurisdiction over a foreign defendant. Relying entirely on inapposite Fourteenth Amendment precedent, the majority opinion arrives at a conclusion that will nullify Federal Rule of Civil Procedure 4(k)(2) in most of its applications, crush the chances of American terror victims seeking recovery in federal court, and, quite anomalously, afford foreign civil defendants greater due process protection than foreign criminal defendants.”
  • Judge Higginson dissented separately to highlight what he sees as mistakes in the majority’s opinion “by importing Fourteenth Amendment constraints on personal jurisdiction, born out of federalism concerns, into process due to foreign corporations in global disputes, where those concerns don’t exist[.]”
  • Judge Oldham dissented to posit that two propositions should have resolved the case: “First, the Supreme Court has never answered—in 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)…. 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. … That should’ve been the end of the case.”

• Taylor v. HD and Associates, LLC, 20-30815, appeal from E.D. La.
  • per curiam (Higginbotham, Willett, Duncan), Fair Labor Standards Act
  • Affirming district court’s summary judgment in favor of defendant employer on cable technician employees’ FLSA overtime claim.
  • The Court rejected the district court’s finding that the technicians were not covered by the FLSA, holding that they work “directly on the instrumentalities of interstate commerce, including phone and internet service,” and are therefore covered.
  • However, the Court affirmed the district court’s finding that the technicians are exempt from overtime requirements under the FLSA’s bona fide commission exemption.

Unpublished

• Tamayac v. Garland, 20-60138, petition for review of BIA order
  • per curiam (Elrod, Southwick, Costa), immigration
  • Denying in part and dismissing in part Guatemalan citizen’s petition for review of BIA order dismissing his appeal and upholding the denial of his motion to reopen removal proceedings.

• U.S. v. Wright, 21-60877, appeal from S.D. Miss.
  • per curiam (Jolly, Willett, Engelhardt), criminal, search and seizure, Armed Career Criminal Act, sentencing
  • Affirming conviction for being a felon in possession of a firearm; but vacating 204-month sentence under the ACCA and remanding for resentencing.

• Donnell v. U.S., 22-40296, appeal from E.D. Tex.
  • per curiam (Jones, Haynes, Oldham), malicious prosecution, jurisdiction
  • Affirming dismissal of plaintiff’s malicious prosecution claim for lack of subject matter jurisdiction.