Sokolow v. Palestine Liberation Organization

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15-3135(L)
Sokolow v. Palestine Liberation Organization
UNITED STATES COURT OF APPEALS
F OR THE SECOND C IRCUIT
____________________________________
August Term, 2015
Case Argued: April 12, 2016 Case Decided: August 31, 2016
Motion Filed: October 8, 2018 Motion Decided: June 3, 2019
Docket Nos. 15-3135-cv (Lead); 15-3151-cv (XAP)
____________________________________
E VA W ALDMAN, REVITAL B AUER , INDIVIDUALLY AND AS NATURAL GUARDIAN OF
PLAINTIFFS YEHONATHON B AUER , B INYAMIN B AUER , D ANIEL B AUER AND YEHUDA
B AUER , S HAUL MANDELKORN, N URIT MANDELKORN, O Z JOSEPH GUETTA, MINOR ,
BY HIS NEXT FRIEND AND GUARDIAN V ARDA GUETTA, V ARDA GUETTA,
INDIVIDUALLY AND AS NATURAL GUARDIAN OF PLAINTIFF OZ J OSEPH GUETTA,
N ORMAN GRITZ , INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE E STATE
OF D AVID GRITZ , MARK I. S OKOLOW , INDIVIDUALLY AND AS A NATURAL GUARDIAN
OF PLAINTIFF J AMIE A. S OKOLOW , RENA M. S OKOLOW , INDIVIDUALLY AND AS A
NATURAL GUARDIAN OF PLAINTIFF J AIME A. S OKOLOW , J AMIE A. SOKOLOW , MINOR ,
BY HER NEXT FRIENDS AND GUARDIAN MARK I. S OKOLOW AND RENA M. S OKOLOW ,
L AUREN M. S OKOLOW, E LANA R. S OKOLOW, S HAYNA E ILEEN GOULD, RONALD
ALLAN GOULD, ELISE J ANET GOULD, JESSICA RINE , S HMUEL WALDMAN, H ENNA
N OVACK WALDMAN, MORRIS W ALDMAN, ALAN J. B AUER , INDIVIDUALLY AND AS
NATURAL GUARDIAN OF PLAINTIFFS YEHONATHON B AUER , B INYAMIN B AUER ,
D ANIEL B AUER AND YEHUDA B AUER , YEHONATHON B AUER , MINOR , BY HIS NEXT
FRIEND AND GUARDIANS D R . ALAN J. B AUER AND REVITAL B AUER , B INYAMIN
B AUER , MINOR , BY HIS NEXT FRIEND AND GUARDIANS D R . ALAN J. B AUER AND
REVITAL B AUER , D ANIEL B AUER , MINOR , BY HIS NEXT FRIEND AND GUARDIANS DR .
ALAN J. B AUER AND REVITAL B AUER , YEHUDA B AUER , MINOR , BY HIS NEXT FRIEND
AND GUARDIANS D R . ALAN J. B AUER AND REVITAL B AUER , RABBI LEONARD
MANDELKORN, KATHERINE B AKER , INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE E STATE OF B ENJAMIN B LUTSTEIN, REBEKAH B LUTSTEIN,

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RICHARD BLUTSTEIN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE
E STATE OF B ENJAMIN B LUTSTEIN, L ARRY C ARTER , INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE E STATE OF D IANE (“D INA”) C ARTER , S HAUN C OFFEL ,
D IANNE C OULTER MILLER , ROBERT L COULTER , J R ., ROBERT L. COULTER , SR .,
INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE E STATE OF J ANIS RUTH
C OULTER , C HANA B RACHA GOLDBERG, MINOR , BY HER NEXT FRIEND AND GUARDIAN
KAREN GOLDBERG, ELIEZER S IMCHA GOLDBERG, MINOR , BY HER NEXT FRIEND AND
GUARDIAN KAREN GOLDBERG, E STHER ZAHAVA GOLDBERG, MINOR , BY HER NEXT
FRIEND AND GUARDIAN KAREN GOLDBERG, KAREN GOLDBERG, INDIVIDUALLY , AS
PERSONAL REPRESENTATIVE OF THE E STATE OF S TUART S COTT GOLDBERG/ NATURAL
GUARDIAN OF PLAINTIFFS C HANA B RACHA GOLDBERG, E STHER ZAHAVA GOLDBERG,
YITZHAK S HALOM GOLDBERG, S HOSHANA MALKA GOLDBERG, ELIEZER S IMCHA
GOLDBERG, YAAKOV MOSHE GOLDBERG, TZVI YEHOSHUA GOLDBERG, S HOSHANA
MALKA GOLDBERG, MINOR , BY HER NEXT FRIEND AND GUARDIAN KAREN GOLDBERG,
TZVI YEHOSHUA GOLDBERG, MINOR , BY HER NEXT FRIEND AND GUARDIAN KAREN
GOLDBERG, YAAKOV MOSHE GOLDBERG, MINOR , BY HER NEXT FRIEND AND
GUARDIAN KAREN GOLDBERG, YITZHAK SHALOM GOLDBERG, MINOR , BY HER NEXT
FRIEND AND GUARDIAN KAREN GOLDBERG, N EVENKA GRITZ , SOLE HEIR OF N ORMAN
GRITZ , DECEASED,
Plaintiffs – Appellees - Cross-Appellants,
—v.—
PALESTINE LIBERATION O RGANIZATION, PALESTINIAN AUTHORITY , AKA
PALESTINIAN INTERIM S ELF -GOVERNMENT AUTHORITY AND OR PALESTINIAN
C OUNCIL AND OR PALESTINIAN N ATIONAL AUTHORITY ,
Defendants - Appellants - Cross-Appellees,
YASSER ARAFAT , MARWIN B IN KHATIB B ARGHOUTI , AHMED TALEB MUSTAPHA
B ARGHOUTI , AKA AL -FARANSI , N ASSER MAHMOUD AHMED AWEIS, MAJID AL -
MASRI , AKA ABU MOJAHED, MAHMOUD AL -TITI , MOHAMMED ABDEL RAHMAN
S ALAM MASALAH, AKA ABU S ATKHAH, FARAS S ADAK MOHAMMED GHANEM, AKA
H ITAWI , MOHAMMED S AMI IBRAHIM ABDULLAH, E STATE OF S AID RAMADAN,
DECEASED, ABDEL KARIM RATAB YUNIS AWEIS, N ASSER J AMAL MOUSA S HAWISH,

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TOUFIK TIRAWI , H USSEIN AL -S HAYKH, S ANA'A MUHAMMED S HEHADEH, KAIRA
S AID ALI S ADI , E STATE OF MOHAMMED H ASHAIKA, DECEASED, MUNZAR MAHMOUD
KHALIL N OOR , E STATE OF WAFA IDRIS, DECEASED, E STATE OF MAZAN FARITACH,
DECEASED, E STATE OF MUHANAD ABU H ALAWA, DECEASED, J OHN D OES, 1-99,
H ASSAN ABDEL RAHMAN,
Defendants.
___________________________________
Before: L EVAL AND DRONEY , Circuit Judges, AND KOELTL , District Judge.*
On October 8, 2018, shortly after Congress enacted the Anti-Terrorism 1
Clarification Act (“ATCA”), the plaintiffs-appellees-cross-appellants 2
(“plaintiffs”) moved this Court to recall the mandate issued after this Court’s 3
decision holding that the federal courts lacked personal jurisdiction over the 4
Palestine Liberation Organization and the Palestinian Authority – the 5
defendants-appellants-cross-appellees (“defendants”) – with respect to the 6
plaintiffs’ claims. The plaintiffs contend that the newly enacted ATCA provides 7
federal courts with jurisdiction over the defendants in this case and thus the 8
mandate should be recalled. The extraordinary remedy of recalling a mandate is 9
not warranted in this case, and the plaintiffs’ motion is accordingly DENIED. 10
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* Judge John G. Koeltl, of the United States District Court for the Southern District of New
York, sitting by designation.

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______________ 1
KENT A. YALOWITZ AND D AVID C. RUSSELL (Baruch Weiss, Dirk C. Phillips, John 2
Robinson, Avishai D. Don, on the brief), Arnold & Porter Kaye Scholer LLP, for 3
Plaintiffs-Appellees-Cross-Appellants. 4
5
GASSAN A. B ALOUL (Mitchell R. Berger, Alexandra E. Chopin, Aaron W. Knights, 6
on the brief), Squire Patton Boggs (US) LLP, for Defendants-Appellants-Cross- 7
Appellees. 8
______________ 9
PER C URIAM: 10
In this case, eleven American families sued the defendants, the Palestine 11
Liberation Organization (“PLO”) and the Palestinian Authority (“PA”), under 12
the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333(a), for various terror attacks in 13
Israel that killed or wounded the plaintiffs or their family members. After a 14
seven-week trial, the jury awarded the plaintiffs damages which, after trebling, 15
amounted to $655.5 million. On appeal, this Court held that the federal courts 16
lacked personal jurisdiction over the defendants with respect to the plaintiffs’ 17
claims. This Court vacated the judgment of the district court and remanded the 18
case with instructions to dismiss the action. The mandate issued on November 19
28, 2016, and the Supreme Court denied the plaintiffs’ petition for a writ of 20
certiorari on April 2, 2018. The plaintiffs have now moved to recall the mandate 21
based on the recently enacted Anti-Terrorism Clarification Act (“ATCA”). 22

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The ATCA became law on October 3, 2018. Pub. L. No. 115-253, 132 Stat 1
3183 (2018). Section 4 of the ATCA, which added a subsection (e) to 18 U.S.C. 2
§ 2334, specifies activities by which certain parties shall be deemed to have 3
consented to personal jurisdiction. The provision states that “regardless of the 4
date of the occurrence of the act of international terrorism upon which [a] civil 5
action [brought under 18 U.S.C. § 2333] was filed,” a defendant shall be deemed 6
to have consented to personal jurisdiction in such action if the defendant either 7
(a) accepts any of three specified forms of assistance after the date that is 120 8
days after Section 4 of the ATCA was enacted or (b) is “benefiting from a waiver 9
or suspension of section 1003 of the [ATA]” and, after the date that is 120 days 10
after Section 4 of the ATCA was enacted, establishes or continues to maintain 11
“any office, headquarters, premises, or other facilities or establishments within 12
the jurisdiction of the United States.”1 18 U.S.C. § 2334(e)(1). 13
1 Section 1003 of the ATA provides that:
It shall be unlawful, if the purpose be to further the interests of the Palestine Liberation
Organization or any of its constituent groups, any successor to any of those, or any
agents thereof . . .
(1) to receive anything of value except informational material from the PLO or any
of its constituent groups, any successor thereto, or any agents thereof;
(2) to expend funds from the PLO or any of its constituent groups, any successor
thereto, or any agents thereof; or
(3) notwithstanding any provision of law to the contrary, to establish or maintain
an office, headquarters, premises, or other facilities or establishments within the

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On October 8, 2018, the plaintiffs filed the present motion to recall the 1
mandate issued in this case. They argue that Section 4 of the ATCA provides the 2
federal courts with jurisdiction over the defendants with respect to the plaintiffs’ 3
claims. The defendants counter that the plaintiffs have failed to show 4
circumstances that warrant the extraordinary remedy of recalling the mandate 5
and that, in any event, Section 4 of the ATCA does not apply retroactively to 6
closed cases. 7
I. 8
The federal courts of appeals “possess an inherent power to recall [a] 9
mandate, subject to review for abuse of discretion.” Taylor v. United States, 822 10
F.3d 84, 90 (2d Cir. 2016) (quotation marks omitted, alteration in original). 11
Recalling a mandate is an extraordinary remedy to be used “sparing[ly].” 12
jurisdiction of the United States at the behest or direction of, or with funds
provided by the Palestine Liberation Organization or any of its constituent groups,
any successor to any of those, or any agents thereof.
22 U.S.C. § 5202. The President of the United States may waive this provision
if the President determines and certifies in writing to the Speaker of the House of
Representatives, the President pro tempore of the Senate, and the appropriate
congressional committees that the Palestinians have not, after the date of
enactment of this Act [either (1) taken certain steps at the U.N. or (2) taken certain
actions vis-à-vis the International Criminal Court].
Klieman v. Palestinian Auth., --- F.3d ----, 2019 WL 2093018, at *12 (D.C. Cir. May 14, 2019)
(alteration and emphasis in Klieman) (quoting Consolidated Appropriations Act, 2016, Pub. L.
No. 114-113, 129 Stat 2242, 2780 (2015)).

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Calderon v. Thompson, 523 U.S. 538, 550 (1998); Taylor, 822 F.3d at 90. Courts are 1
reluctant to recall a mandate because of “the need to preserve finality in judicial 2
proceedings.” Sargent v. Columbia Forest Prod., Inc., 75 F.3d 86, 89 (2d Cir. 3
1996). Although the passage of a new law might warrant recalling a mandate in 4
some circumstances, this is not such a case. 5
II. 6
A. 7
The plaintiffs have not shown that either factual predicate of Section 4 of 8
the ATCA has been satisfied. As to the first factual predicate, acceptance of a 9
qualifying form of United States assistance, the plaintiffs state only that the 10
defendants have accepted qualifying assistance in the past; they do not contend 11
that the defendants currently do so. Meanwhile, in Klieman v. Palestinian 12
Authority, which was decided on May 14, 2019, the Court of Appeals for the 13
District of Columbia Circuit accepted the representation the Department of 14
Justice made in an amicus curiae brief that neither the PLO nor the PA accept 15
United States assistance. --- F.3d ----, 2019 WL 2093018, at *10 (D.C. Cir. May 14, 16
2019). The papers the plaintiffs filed in connection with this motion do not 17

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provide any reason to doubt the Department of Justice’s representation or the 1
Klieman court’s adoption of that representation. 2
The plaintiffs also fail to show that, in accordance with Section 4’s second 3
factual predicate, the defendants benefit from a waiver or suspension of Section 4
1003 of the ATA and have established or continued to maintain an office or other 5
facility “within the jurisdiction of the United States.” Both conditions are 6
necessary under Section 4’s second factual predicate. Klieman, 2019 WL 2093018 7
at *10. 8
As to the first condition, the plaintiffs have not established that the 9
defendants benefit from an express waiver or suspension under Section 1003 of 10
the ATA. The plaintiffs contend that an express waiver is not required by Section 11
4 of the ATCA, and that the President impliedly suspended Section 1003 of the 12
ATA with respect to the defendants by permitting the defendants to engage in 13
conduct allowed only if Section 1003 were suspended. But the Klieman court 14
persuasively rejected a similar argument, reasoning that allowing implied 15
waivers to qualify under Section 4 of the ATCA would “neglect the actual 16
language of the legal authorization to issue waivers under [ATA] § 1003, . . . 17
which creates legal consequences when the President ‘certifies in writing’ that a 18

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waiver is to be issued.” 2019 WL 2093018 at *12. The plaintiffs in this case have 1
not put forth anything that could qualify as, or substitute for, an express waiver 2
or suspension under Section 1003 of the ATA. 3
Moreover, the plaintiffs in this case have not shown that the defendants 4
have established or continued to maintain an office or other facility within the 5
jurisdiction of the United States. Although the PLO maintains its United Nations 6
Observer Mission in New York, the prohibitions of Section 1003 of the ATA do 7
not apply to that office. Klinghoffer v. S.N.C. Achille Lauro Ed Altri-Gestione 8
Motonave Achille Lauro, 937 F.2d 44, 46 (2d Cir. 1991); see United States v. 9
Palestine Liberation Org., 695 F. Supp. 1456, 1465 (S.D.N.Y. 1988) (finding the 10
ATA inapplicable to the PLO Observer Mission). The Observer Mission is not 11
considered to be within the jurisdiction of the United States. See Klinghoffer, 937 12
F.2d at 51 (“[T]he PLO’s participation in the UN is dependent on the legal fiction 13
that the UN Headquarters is not really United States territory at all, but is rather 14
neutral ground over which the United States has ceded control.”). 15
The plaintiffs point out that, according to Klinghoffer, “activities not 16
conducted in furtherance of the PLO’s observer status may properly be 17
considered as a basis of jurisdiction.” Id. at 51. But this statement was made in 18

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reference to determining whether such activities conferred personal jurisdiction 1
over the PLO under § 301 of the New York Civil Practice Laws and Rules. 2
Nothing in Klinghoffer suggests that the PLO’s engaging in activities unrelated 3
to its observer status transforms the PLO’s Observer Mission into an office or 4
other facility for the PLO “within the jurisdiction of the United States.” 5
In sum, the plaintiffs have provided no basis to conclude that a factual 6
predicate of Section 4 of the ATCA has been met in this case. 7
B. 8
This Court’s interest in finality also weighs against recalling the mandate. 9
When its factual predicates are met, Section 4 provides jurisdiction over a 10
defendant “regardless of the date of the occurrence of the act of international 11
terrorism upon which [the relevant] civil action was filed,” 18 U.S.C. § 2334(e)(1), 12
providing that the defendant subsequently commits certain acts. But irrespective 13
of whether this language suggests that Section 4 applies retroactively to pending 14
cases, such as the appeal in Klieman, it does not suggest that courts should 15
reopen cases that are no longer pending. Legislation applies prospectively unless 16
Congress explicitly provides for retroactive application. Vartelas v. Holder, 566 17
U.S. 257, 265–66 (2012); see Landgraf v. USI Film Prods., 511 U.S. 244, 272–73 18

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(1994). And it is well-established that retroactive laws generally do not affect 1
valid, final judgments. See Bank Markazi v. Peterson, 136 S. Ct. 1310, 1323 (2016) 2
(“Congress . . . may not ‘retroactively comman[d] the federal courts to reopen 3
final judgments.’” (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 4
(1995) (alteration in original))). The mandate in this case was issued two and a 5
half years ago, and the Supreme Court denied the plaintiffs’ petition for a writ of 6
certiorari more than six months before the plaintiffs filed their motion to recall 7
the mandate. The ATCA does not provide explicitly or implicitly that closed 8
cases can be reopened. Recalling the mandate now would offend “the need to 9
preserve finality in judicial proceedings.” Taylor, 822 F.3d at 90 (quotation marks 10
omitted).2 11
CONCLUSION 12
This case does not warrant invoking the extraordinary remedy of recalling 13
a mandate issued two and a half years ago. The Court has considered all the 14
arguments of the parties. To the extent not specifically addressed, they are either 15
2 The plaintiffs in this case have filed a new complaint in the Southern District of New York.
Sokolow v. Palestine Liberation Organization, No. 18cv12213 (S.D.N.Y.). To the extent that there
are any developments in the activities of the PA or the PLO that may subject them to personal
jurisdiction under the ATCA, they can be raised in that case.

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moot or without merit. For the reasons explained above, the plaintiffs’ motion to 1
recall the mandate is DENIED. 2

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