Sosa v. Alvarez-Machain (03-339), Ashcroft v. ACLU (03-218), Tennard v. Dretke (02-10038), Holland v. Jackson (03-1200)

June 30, 2004 Supreme Court Update

Greetings Court fans!
Another installment summarizing the end of Term flurry of opinions.
In Sosa v. Alvarez-Machain (03-339), the Court considered claims under the Federal Tort Claims Act (FTCA) and the Alien Tort Statute (ATS). To make a long story short, DEA agents hired Mexican nationals (including Sosa) to seize Alvarez in Mexico and bring him to the United States to face prosecution for his role in the 1985 torture and murder of a DEA agent. After Alvarez was acquitted of the charges, he filed suit against the United States under the FTCA alleging false arrest and against Sosa under the ATS alleging a violation of the law of nations. In a lengthy opinion by Souter (is there any other kind?), the Court found that Alvarez had no remedy under either statute, although it left open the potential for limited claims (in other cases) under the ATS. On the FTCA question, Souter was joined by everyone but Ginsburg and Breyer. The FTCA waives the sovereign immunity of the United States for certain torts, but contains specific limitations on that waiver. As relevant here, the FTCA does not waive sovereign immunity for "any claim arising in a foreign country." The Ninth Circuit found this exception inapplicable under the "headquarters doctrine," which provides that the foreign-country exception doesn't apply when the alleged harm is caused by actions planned and directed in the United States. As Souter noted, the headquarters doctrine, as so defined, threatens to swallow the foreign-country exception because it's virtually always possible to describe allegedly tortious activity as the result of actions taken (or not taken) in the United States. In any event, there is good reason to believe that Congress understood the foreign-country exception to prohibit all claims when the injury or harm occurred in a foreign country. (Souter explains the good reason for this belief, namely, the general understanding of the phrase "arising in" at the time of the FTCA's enactment, and the then-prevailing understanding of choice-of-law principles for tort claims.) Under this place-of-injury rule, Alvarez cannot maintain a claim against the United States because his alleged harm (false arrest) occurred in Mexico. Ginsburg (joined by Breyer) would reach the same result, but she would interpret the foreign-country exception to prohibit claims based on the place of the alleged tortious act or omission, not on the place of the injury.
On the ATS question, Souter was joined by everyone but Scalia, the Chief and Thomas. Enacted in 1789, the ATS provides that federal courts "shall . . . have cognizance . . . of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." Unquestionably, this gives federal courts jurisdiction over certain causes of action, so the big question is whether the statute also grants authority for the creation of a new cause of action for torts in violation of international law. Souter finds this reading of the statute "implausible." Nonetheless, Souter reviews the history of the statute and the "ambient law of the era" to conclude that the ATS allows federal courts to entertain claims for torts in violation of the law of nations that were specifically and definitively recognized in 1789, namely, "violation of safe conducts, infringement of the rights of ambassadors, and piracy." In addition, because Congress has not prevented courts from recognizing new causes of action, courts today could recognize new tort claims, although they should proceed cautiously and only recognize new causes of action that are as definite and accepted as the original three tort claims. Because Alvarez's proposed claim does not meet this standard, he cannot proceed. Scalia (joined by the Chief and Thomas) concurred. He basically agrees, but because Erie effectively shut down the federal-common-law-making role for federal courts, he would not allow federal courts to create new causes of action. Breyer also concurred to emphasize restrictions that should apply to the creation of new causes of action.
Next, in Ashcroft v. ACLU (03-218), the Court upheld a preliminary injunction preventing enforcement of the Child Online Protection Act (COPA), Congress's latest attempt to protect children from online porn. COPA labels certain speech -- basically, obscene materials -- as criminal speech but allows an affirmative defense to those who employ specific means to prevent children from gaining access to the speech. For example, if a "speaker" uses credit cards, adult access codes, digital age certificates, or adult personal identification numbers, the speaker may raise an affirmative defense to prosecution. Content-based restrictions, such as COPA, are presumed invalid under the First Amendment; the government bears the burden of proving that they are constitutional. In this case, the district court granted a preliminary injunction against enforcement of COPA after it found that the government had failed to prove that there were less restrictive alternatives available to restrict the access of minors to harmful speech. The big alternative the government had failed to adequately address was the existence of filtering technology. On this record, and applying the traditional "abuse of discretion" standard of review, the Court (Kennedy, joined by Stevens, Souter, Thomas and Ginsburg) affirmed. Basically, Kennedy thinks that the government failed to show that filtering would be less restrictive than the COPA restrictions. In any event, this is just a preliminary injunction, so the case is remanded to the district court for trial on the merits. On remand, the district court can take into account any factual disputes and recent technological developments that bear on the question. Stevens (joined by Ginsburg) concurred. He believes that the statute is unconstitutional because it uses "contemporary community standards" as a benchmark for analysis. Scalia dissented. As he has said before, he doesn't believe that sex panderers are engaged in constitutionally protected behavior and so there is no problem regulating their conduct. Breyer (joined by the Chief and O'Connor) dissented. He reviews the statute to conclude that it doesn't actually suppress that much (if any) protected speech, and criticizes the majority's "less restrictive means" analysis for using the wrong benchmark. Specifically, the majority assumes that filters are an alternative to the COPA. Breyer, by contrast, assumes that Congress drafted COPA to regulate a world that already included filters and thus the question is whether there are less restrictive means to provide protection for children that supplement filters.
Next, I'll touch briefly on two habeas cases. In Tennard v. Dretke (02-10038), the Court reversed the Fifth Circuit's decision that denied habeas relief to a prisoner on death row in Texas. In Penry v. Lynaugh, the Court held that Texas' capital sentencing procedure provided a constitutionally inadequate method for jurors to consider and give effect to mitigating evidence of mental retardation. Tennard, who presented evidence during the penalty phase of his capital trial that he had a low IQ, argued that the same scheme prevented the jury from giving effect to his low IQ. The state courts rejected this claim, and on habeas, the federal district court rejected it as well. The Fifth Circuit held that Tennard was not entitled to a certificate of appealability (COA) on this issue. The Supreme Court (opinion by O'Connor, joined by Stevens, Kennedy, Souter, Ginsburg, and Breyer) reversed. A COA should issue if the petitioners demonstrates that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong, and this analysis must take into account the deferential standard of review applicable to federal habeas petitions. The Fifth Circuit didn't apply this standard, though. Instead, it asked whether Tennard's IQ evidence was "constitutionally relevant," the standard it routinely applies to Penry claims, and denied relief under this standard. O'Connor notes that the "constitutional relevance" test "has no foundation in the decisions of [the Supreme Court]" and is in fact inconsistent with the Court's decisions. For example, as applied, the constitutional relevance test screens out positive aspects of a defendant's character even though those aspects are directly relevant to sentencing. If the Fifth Circuit had applied the correct test, it would have granted the COA. Reasonable jurists could conclude that the low IQ evidence was relevant mitigating evidence and that the state courts unreasonably applied Penry to the facts of this case. Rehnquist dissented. He contends that the district court properly asked whether the low IQ evidence was before the jury and properly concluded that it was. Scalia and Thomas wrote separate dissents to express the same effective sentiment: Penry is so nutty that it should have no stare decisis effect.
In the second habeas case, Holland v. Jackson (03-1200), the Court ruled against the prisoner. (This was not an argued case, but rather a per curiam "GVR," where the Court grants, vacates, and remands all in one order. This disposition is reserved for those cases (usually out of the Ninth Circuit) that are so obviously wrong that they don't even need full briefing to decide.) Jackson's habeas petition claimed his lawyer was constitutinally ineffective for failing to adequately investigate the crime. The Sixth Circuit ultimately granted habeas relief, but the Court reversed to emphasize -- yet again -- that it really means "defer" when it says federal habeas courts should defer to state court decisions. Here, for example, the Sixth Circuit ignored an independent basis for the state court's decision that fully supported that decision. This was error. The Sixth Circuit also erred by reading selected language in the state court's decision as applying the wrong standard instead of giving the state court the benefit of the doubt. Stevens, Souter, Ginsburg and Breyer would have denied the cert petition.
Before I close this edition, a couple post scripts to earlier posts: First, don't forget that you can access all documents related to the Rumsfeld v. Padilla case, including the decision, at Second, in the category of "I told you it was a big case," yesterday a federal court in Utah struck down the federal sentencing guidelines as unconstitutional under Blakely. The Justice Department is scrambling. Until later, thanks for reading!

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin at 203-498-4400, or visit our website at