Publications

Greetings, Court Fans!

It’s been ages, but we’re finally back with new decisions. After literally months of silence (at least with respect to opinions), the Court came roaring back this week with eight (eight!) new decisions:

• In Hernandez v. Mesa (No. 17-1678),the Court (5-4) refused to recognize a Bivens remedy for a cross-border shooting;

• In McKinney v. Arizona (No. 18-1109), the Court (5-4) held that a state appellate court may reweigh aggregating and mitigating circumstances for a death sentence on collateral review;

• In Monasky v. Taglieri (No. 18-935), the Court (more or less unanimously) held that a child’s “habitual residence,” for purposes of the Hague Convention on the Civil Aspects of Child Abduction depends on the totality of the circumstances specific to a particular case, not on categorical requirements like an agreement between the parents;

• In Rodriguez v. FDIC (No. 19-1629), the Court unanimously held that federal courts must follow applicable state law in determining how tax refund proceeds are distributed to affiliated corporations filing consolidated tax returns;

• In Roman Catholic Archdiocese of San Jun, Puerto Rico v. Acevedo Feliciano (No. 18-921), the Court avoided a potentially nettlesome issue about the corporeal status of the Catholic Church in Puerto Rico, instead holding (unanimously and per curiam) that a Puerto Rico trial court lacked jurisdiction at the precise moment when it issued its injunction;

• In Intel Corp. Investment Policy Committee v. Sulyma (No. 18-1116), the Court unanimously held that, for purposes of the statute of limitations for fiduciary breach claims under ERISA, a plaintiff only has “actual knowledge” of a breach if he is in fact aware of it;

• In Holguin-Hernandez v. United States (No. 18-7739), the Court unanimously held that when a defendant argues for a specific sentence, he need not specifically object to the reasonableness of a longer sentence in order to preserve a claim on an appeal that the sentences is unreasonably long; and

• In Shular v. United States (No. 17-6662), the Court unanimously held that, to qualify as a “serious drug offense” under the Armed Career Criminal Act, a state offense must simply involve the conduct specified in the federal statute and does not need to match a “generic” version of the offense.

Don’t worry: We’re not going to make you read summaries of all eight decisions in one go. But we are going to make you read summaries of five of them. Scroll down for summaries of the decisions handed down Monday and Tuesday, and tune back next week for the decisions handed down Wednesday.

First up: Hernandez v. Mesa (No. 17-1678), a case in which the conservative majority refused to recognize a Bivens claim arising out of a cross-border shooting. In Bivens, the Court recognized (some would say “created”) a new cause of action for the victim of an unlawful arrest to bring a Fourth Amendment claim for damages against the responsible agents, even in the absence of a federal statute authorizing such a claim. (Section 1983, which authorizes constitutional claims against officials acting under color of state law, does not apply to federal agents.) The Court subsequently extended Bivens in two other cases—Davis v. Passman (1979), recognizing a congressional staffer’s Fifth amendment claim of dismissal based on sex, and Carlson v. Green (1980), recognizing a federal prisoner’s Eighth Amendment claim for failure to provide adequate medical treatment. But since 1980, the Court has mostly been in the business of limiting the Bivens cause of action and refusing to extend it to “new contexts.” The question here was whether the tragic (and tragically recurrent) circumstances of the case amounted to a new context outside the current Bivens terrain.  

Hernandez was a 15-year-old Mexican national who was playing with a group of friends in a concrete culvert separating El Paso, Texas, from Ciudad Juarez, Mexico, when he was shot and killed by U.S. Border Patrol Agent Jésus Mesa. The parties disputed just what Hernández and his friends were doing at the time he was killed. Hernández’s family and friends say they were playing a game in which they ran across the culvert, touched the fence on the U.S. side, and ran back. Mesa claimed they were involved in an illegal border crossing attempt and had pelted him with rocks. In any case, the key fact for purposes of this case was that, when Hernández was shot, he was in Mexico, even though Mesa had fired from the United States.

The shooting caused an international incident, with Mexico demanding (and the U.S. refusing) Mesa’s extradition to face criminal charges. It also sparked a lawsuit, in which Hernández’s parents sought damages under Bivens for violations of his Fourth and Fifth Amendment rights. The District Court dismissed the claims, and the Fifth Circuit affirmed, twice. On the first occasion, it held that Hernández was not entitled to Fourth Amendment protection because he was a Mexican citizen on Mexican soil at the time he was shot. The case went up to the Supreme Court, but was punted, in a sense. Having just decided Ziglar v. Abbasi (2017), its most recent refusal to extend Bivens, the Court determined that the Fifth Circuit should revisit the Bivens question in Hernández’s case in light of Abbasi, and that it would be imprudent to reach the more “sensitive” question of the Fourth Amendment’s extraterritorial extension in the meantime. On remand, the Fifth Circuit reviewed the case in light of Abbasi and refused to recognize a Bivens cause of action for a cross-border shooting.

The Supreme Court affirmed, 5-4. Writing for the conservative majority, Justice Alito observed that “Bivens, Davis, and Carlson were the products of an era when the Court routinely inferred ‘causes of action’ that were ‘not explicit’ in the text of the provision that was allegedly violated.” More recently, however, the Court has come “to appreciate more fully the tension between this practice and the Constitution’s separation of legislative and judicial power” and has come to doubt its authority to recognize causes of action not expressly created by Congress. Therefore, in recent times, the Court has employed a two-step inquiry when deciding whether to extend Bivens: Step One is to say “no.” Kidding! Step One is to ask whether the request to extend Bivens arises in a “new context” or involves a “new category of defendants.” If so, the second step is to consider whether there are any “special factors [that] counse[l] hesitation” about granting the extension.

Applying this test, Justice Alito first determined that Hernández’s purported claims do arise in a new context. Although they involve alleged violations of the Fourth and Fifth Amendments (which have previously been recognized to support Bivens claims), the context of a cross-border shooting is significantly different from previous Bivens cases, because it involves a “risk of disruptive intrusion by the Judiciary into the functioning of other branches.” Justice Alito then determined that multiple related factors counsel hesitation before extending Bivens to this new context. To begin with, a cross-border shooting implicates foreign relations and would impinge on the Executive Branch’s “lead role in foreign policy.” In this case, for example, both the United States and Mexico had legitimate and important interests at stake that the U.S. Supreme Court should not arbitrate. In addition, recognizing a Bivens claim in this context could undermine border security; just as the Court has refused to extend Bivens in contexts that would interfere with the system of military discipline, it should defer in this instance to the U.S. Customs and Border Protection Agency’s policing of its own agents (as well as the border). Finally, Justice Alito noted that Congress had repeatedly refused to create federal causes of action for injuries inflicted outside the United States. For example, Bivens’s state-law analog, is explicitly available only to “citizen[s] of the United States or other person[]s within the jurisdiction thereof.” Ultimately, all of these factors related to the concern for respecting the separation of powers. Given this vital concern, Alito and the majority concluded that only Congress can create a cause of action extending to this new context.

Justice Thomas concurred in Alito’s opinion, but wrote separately (along with Justice Gorsuch) to articulate the subtext: Bivens itself was wrongly decided and should be reversed. The Court has already abandoned the practice of creating implied statutory causes of action, Thomas noted, and the time has come to abandon the practice of creating (or even entertaining) implied constitutional claims, as well. “The analysis underling Bivens cannot be defended. We have cabined the doctrine’s scope, undermined its foundation, and limited its precedential value. It is time to correct this Court’s error and abandon the doctrine altogether.”

Needless to say, the four more liberal Justices disagreed. Taking the lead, Justice Ginsburg argued that “[r]ogue U.S. officer conduct falls within a familiar, not a ‘new,’ Bivens setting,” and that there are no “special factors” counseling against a Bivens remedy here, where the allegedly unconstitutional conduct (i.e. shooting a 15-year-old without just cause) occurred entirely within the United States. While Justice Ginsburg recognized that Bivens had been “rein[ed] in” over the years, she stressed that even Abbasi recognized it as the good law, and even “necessary,” since there would otherwise be no remedy for serious constitutional violations.

Applying the two-part inquiry, Ginsburg concluded that Hernández’s case arose in a setting analogous to Bivens itself: a rogue officer allegedly acted in disregard of policies governing his conduct and of Hernández’s constitutional rights and violated the Fourth and Fifth Amendments by using lethal force against a person posing no immediate threat. Even the Government acknowledged that Hernández would have a valid Bivens claim if the bullet had struck him while on the U.S. side of the border. And, in Ginsburg’s view, “Hernández’s location at the precise moment the bullet landed should not matter one whit.” The very purpose of Bivens is to deter misconduct by officers in the United States. “It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a culver, not the other.” Even if this was a “new context,” Ginsburg continued, there were not “special factors” counseling against recognition of a Bivens claim. Mesa was alleged to be a rogue officer, acting in derogation of U.S. policies, not some high-ranking policymaker conducting foreign relations. And Mexico itself had explicitly informed the Court that refusal to recognize a cause of action “is what has the potential to negatively affect international relations.” As Justice Ginsburg noted, “the death of Hernández is not an isolated incident.” Border agents have repeatedly engaged in cross-border misconduct like that alleged here, almost always without disciplinary action. Without the possibility of civil liability, there is no meaningful deterrent to abuse at the border. “In short,” Justice Ginsburg concluded,” it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing.”

The other 5-4 decision of the week came in McKinney v. Arizona (18-1109), where the Court addressed whether and how an appellate court can weigh the aggravating and mitigating factors in supporting a death sentence. In 1992, an Arizona jury convicted James McKinney of two counts of murder in the first degree, and he was sentenced to death. In 2015, by a 6-5 vote of an en banc panel, the Ninth Circuit overturned his death sentence on habeas review. The Circuit Court found that the Arizona courts had failed to give due consideration to McKinney’s posttraumatic stress disorder as a mitigating factor for sentencing, as required by Eddings v. Oklahoma (1982). The case returned to the Arizona Supreme Court, which in 2018 upheld the original death sentence after concluding that it was permitted to reweigh the aggravating and mitigating circumstances itself, pursuant to Clemons v. Mississippi (1990). McKinney sought cert, arguing that Clemons should not apply, and jury resentencing should be required because (1) Clemons involved the improper consideration of aggravating circumstances, rather than the improper ignoring of mitigating circumstances, and (2) Ring v. Arizona (2002), and Hurst v. Florida (2016), which require juries rather than judges to make factual findings in support of imposing the death penalty, have effectively overruled Clemons. In addition, McKinney argued that his original sentencing was itself a violation of Ring and Hurst because the jury did not make the findings of aggravating circumstances that led to his death sentence. 

In a 5-4 decision authored by Justice Kavanaugh, the Court rejected McKinney’s arguments. Justice Kavanaugh found no reason to distinguish between mitigators and aggravators, as Clemons turned on the principle that nothing in the Constitution prevents appellate courts from reweighing evidence, as appellate courts do all the time in the harmless-error context, and that such reweighing does not constitute resentencing. As to Ring and Hurst, Kavanaugh reasoned that those cases are not inconsistent with Clemons because they require only that juries make the factual findings underlying a death sentence, not that they do the final weighing of the factors. And, while it is possible that McKinney’s original sentencing did not comply with Ring and Hurst, those cases do not apply retroactively to cases on collateral review. Finally, Justice Kavanaugh rejected McKinney’s contention that the Arizona Supreme Court’s post-habeas reweighing in 2018 constituted a form of direct sentencing review. The state supreme court itself characterized the proceedings as collateral, not direct, and the majority concluded that that characterization was warranted under the circumstances.

Justice Ginsburg again led the charge for the dissenters.  The pivotal question on which she disagreed with the majority was whether the Arizona Supreme Court’s reweighing proceeding in 2018 was collateral—such that Ring would not apply—or a form of direct sentencing review—such that it would. Detailing the prior proceedings, including the Arizona Supreme Court’s direct review of the death sentence in 1996, Justice Ginsburg concluded that the 2018 reweighing was “essentially a replay of the initial direct review proceeding” and “retread ground traversed in 1996.” The federal courts, she reasoned, should not be bound by Arizona’s own characterization of the proceeding in determining whether it is the type of proceeding to which present-day federal constitutional rules apply. 

Next up, in Monasky v. Taglieri (No. 18-935), the Court addressed two questions that frequently arise in international child custody disputes. The Hague Convention on the Civil Aspects of International Child Abduction was adopted in 1980 to address the problem of international child abductions arising from domestic disputes. Under the Convention, to which the U.S. and most other nations are signatories, courts must (with some exceptions) return children wrongfully removed from their country of “habitual residence,” so that the courts of that country can resolve custody disputes. But how are trial courts to determine which country is a child’s “habitual residence,” and how are appellate courts supposed to review those determinations? In Monasky, a unanimous Court resolved both questions, in the process clearing up some inconsistency among the lower courts.

In 2011, Michelle Monasky, a U.S. citizen, married Domenico Taglieri, an Italian national. Soon after, they relocated to Italy, where they had a daughter, A.M.T. Following incidents of alleged domestic abuse, Monasky left Italy for Ohio, taking A.M.T. with her. Taglieri petitioned a federal court in Ohio to order the return of A.M.T. to Italy, arguing that it was her country of habitual residence. After a four-day evidentiary hearing, the district court found that Monasky and Taglieri had the “shared intention” of raising A.M.T. in Italy (prior to Monasky’s departure, that is). Concluding that Italy was her country of habitual residence, it ordered her returned there. A divided Sixth Circuit reviewed the district court’s finding for clear error and affirmed, as did a divided en banc court. The Supreme Court granted certiorari.

Writing for a unanimous Court, Justice Ginsburg began with the standard courts should use for determining a child’s habitual residence. Monasky argued that, at least for infants like A.W.T., a child’s habitual residence was the place where the parents had actually agreed the child should be raised, an agreement she contended was absent here. Relying on the text of the Convention, its drafting history, and decisions of other countries’ courts, Justice Ginsburg rejected this categorical approach in favor of a “fact-driven inquiry” that depends on the specifics of each case. When it comes to older children, the Court approved of decisions that look primarily to whether the child has acclimated to a particular environment. But for younger children, courts should look to the intentions and circumstances of the parents. Regardless of the child’s age, however, no single fact should be dispositive: There may be good reasons for discounting these factors or relying on other ones in individual cases. This fact-intensive standard led the Court to reject Monasky’s proposed categorical approach, not only because it would make one particular fact determinative but also because it would result in many children having no habitual residence at all, thwarting the Convention’s basic purpose. Justice Ginsburg then turned to the standard of appellate review, which was largely resolved by the way the Court decided the habitual-residence question. The flexible, fact-specific inquiry the Court called on district courts to follow sounds a lot like fact finding, something appellate courts generally review for clear error. Seeing no reason to depart from ordinary practice, the Court agreed with Sixth Circuit that district court’s habitual residence determinations should be reviewed under the deferential clear error standard.

Two members of the Court wrote brief concurrences. Justice Thomas, writing only for himself, agreed with the majority’s resolution of both questions presented. But he would’ve resolved the standard for habitual residence based solely on the Hague Convention’s text without looking, as Justice Ginsburg’s opinion had, to its drafting history and the way the Convention had been interpreted and applied in the courts of other signatories. And Justice Alito, also writing alone, agreed that the standard of review used by appellate courts should be a deferential one. But he thought that standard was better described as review for abuse of discretion, rather than clear error, though he conceded the words used to describe it made little practical difference in this case.

Rodriguez v. FDIC (No. 18-1269) asked whether a judge-made rule called the “Bob Richards rule,” which governed the distribution of tax refund proceeds to groups of affiliated corporations in certain jurisdictions, was a proper exercise of federal common lawmaking. Justice Gorsuch, writing for a unanimous Court, held that it was not, and that courts should instead apply governing state law. In other words, Bob Richards is dead; though Bob Richards is still very much alive, and would like to put you in a used Toyota.

The IRS allows an affiliated group of corporations to file a consolidated tax return, and pays such groups a single refund, given to a designated agent. However, neither federal law nor IRS regulations describe how the refund should then be distributed amongst the group members. Many such corporate groups enter into “tax allocation agreements” to address this issue. But some do not. What rule should govern the distribution of refund proceeds in the absence of an agreement? The circuits have been split on this issue. The Ninth Circuit originated the Bob Richards rule, which holds that in the absence of an agreement the refund belongs to the group member responsible for the losses that led to it. Other courts, including the Tenth Circuit in Rodriguez, adopted and expanded on the Bob Richards rule, opting to apply it even where parties had entered into a tax allocation agreement, unless the agreement “unambiguously” says otherwise. By contrast, the Sixth Circuit rejected the Bob Richards rule entirely, holding that it was an improper exercise of federal common lawmaking. The Supreme Court took up the case to, in its words, “decide Bob Richards’s fate.”

Fate was unkind to Bob Richards. (The rule, not the car salesman; fate’s been pretty good to him, it seems.) Justice Gorsuch emphasized that federal common lawmaking is restricted to “limited areas,” and explained that for federal judges to “claim a new area” to make law, it must be “necessary to protect uniquely federal interests.” The federal government has no unique interest in determining how a consolidated tax refund is distributed among affiliated corporations, so it held that this is not a proper area for judges to be making the rules. What rules should apply then, where there is no tax allocation agreement? Those of the States. After all, corporations “are generally creatures of state law,” and “state law is well equipped to handle disputes involving corporate property rights.” The Court therefore remanded the case to the Tenth Circuit to apply state law in determining how the refund in this case should be distributed.

Finally (for now), in Roman Catholic Archdiocese of San Juan, Puerto Rico v. Acevedo Feliciano (No. 18-921), the Court was saved by a procedural quirk from having to decide a fascinating, but potentially nettlesome question of First Amendment law—namely whether the “Roman Catholic and Apostolic Church in Puerto Rico” is a recognizable legal entity, and who gets to decide.

In 2016, active and retired Catholic schoolteachers in Puerto Rico stopped receiving their pension benefits. They sued the pension trust, several employer schools, the Archdiocese of San Juan and “the Roman Catholic and Apostolic Church of Puerto Rico.” That last defendant isn’t an actual incorporated institution, but a “constructive” entity that the plaintiffs had conjured in order to encompass all Catholic institutions in Puerto Rico. If that combined entity could be held legally liable, it would assist the plaintiffs collection efforts against smaller individual (and potentially judgment proof) institutions. The ultimate dispute between the parties turned on whether there is any such unified legal entity with collective responsibility for the Catholic Church’s activities on Puerto Rico. The Puerto Rico trial court concluded that the Roman Catholic and Apostolic Church of Puerto Rico is a recognizable legal person issued an order requiring the sheriff to “seize assets and moneys of . . . the Holy Roman Catholic and Apostolic Church, and any of its dependencies that are located in Puerto Rico.” The Court of Appeals reversed, holding that the “Roman Catholic and Apostolic Church of Puerto Rico” is a “legally nonexistent entity,” but the Puerto Rico Supreme Court reinstated the trial court’s ruling and preliminary injunction, over a dissent that criticized the court for “inappropriately interfer[ing] with the operation of the Catholic Church by imposing on it a legal personality that it does not hold in the field of private law.”

The Archdiocese of San Juan petitioned for certiorari on Establishment Clause grounds, arguing that the Puerto Rico Supreme Court had eviscerated the Church’s religious autonomy by assigning legal personality to an entity the Church did not recognize. The (U.S.) Supreme Court called for the views of the Solicitor General, who suggested a narrower basis for vacatur and remand: The Puerto Rico Supreme Court violated the Free Exercise Clause by applying a unique presumption of monolithic personality to the Catholic Church, thus violating the fundamental tenet that a government may not “single out an individual religious denomination . . . for discriminatory treatment.” But the SG also identified another way out: The Court might decide the case on jurisdictional grounds because, early on in the proceedings, the Archdiocese had removed the case to federal district court and it had not yet been remanded to the Puerto Rico courts when the trial court issued its injunction.

The Supreme Court took the cue. In a per curiam opinion, the Court granted, vacated and remanded for lack of jurisdiction. The Court determined that the “Court of First Instance issued its payment and seizure orders after the proceeding was removed to federal district court, but before the federal court remanded the proceeding back to the Puerto Rico court.” At that time, “the Court of First Instance had no jurisdiction over the proceeding” and the “orders are therefore void.” In language that tracked the Government’s brief, the Court then summarily rejected two “possible rejoinders.” First, the Church did not consent to jurisdiction in Puerto Rico court merely by filing motions in the territorial courts. Second, the District Court could not make its remand retroactively effective. Instead of reaching the Free Exercise question suggested by the Solicitor General, however, the Court found it preferable to remand to the Puerto Rico courts to hear the case anew—this time, with jurisdiction.

That’s quite enough for today. We’ll be back next week with summaries of the three remaining decisions of this week, along with any new decisions. Have a great weekend!

Tadhg and Dave