Hernandez et al. v. Mesa

Certiorari To The United States Court Of Appeals For The Fifth Circuit

No. 17-1678. Argued November 12, 2019--Decided February 25, 2020

Respondent, United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, in a tragic and disputed cross-border incident. Mesa was standing on U. S. soil when he fired the bullets that struck and killed Hernández, who was on Mexican soil, after having just run back across the border following entry onto U. S. territory. Agent Mesa contends that Hernández was part of an illegal border crossing attempt, while petitioners, Hernández’s parents, claim he was playing a game with his friends that involved running back and forth across the culvert separating El Paso, Texas, from Ciudad Juarez, Mexico. The shooting drew international attention, and the Department of Justice investigated, concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and declined to bring charges against him. The United States also denied Mexico’s request for Agent Mesa to be extradited to face criminal charges in Mexico.

Petitioners sued for damages in U. S. District Court under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The District Court dismissed their claims, and the United States Court of Appeals for the Fifth Circuit affirmed. After this Court vacated that decision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S. ___, the Fifth Circuit again affirmed, refusing to recognize a Bivens claim for a cross-border shooting.

Held: Bivens’ holding does not extend to claims based on a cross-border shooting. Pp. 4–20.

(a) In Bivens, the Court implied a Fourth Amendment claim for damages even though no federal statute authorized such a claim. The Court later extended Bivens’ reach to cover claims under the Fifth and Eighth Amendments. See Davis v. Passman, 442 U. S. 228; Carlson v. Green, 446 U. S. 14. But Bivens’ expansion has since become “a ‘disfavored’ judicial activity,” Abbasi, supra, at ___, and the Court has generally expressed doubt about its authority to recognize causes of action not expressly created by Congress, see, e.g., Jesner v. Arab Bank, PLC, 584 U. S. ___, ___. When considering whether to extend Bivens, the Court uses a two-step inquiry that first asks whether the request involves a claim that arises in a “new context” or involves a “new category of defendants.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 68. If so, the Court then asks whether there are any “special factors [that] counse[l] hesitation” about granting the extension. Abbasi, supra, at ___. Pp. 4–8.

(b) Petitioners’ Bivens claims arise in a new context. Their claims are based on the same constitutional provisions as claims in cases in which damages remedies were previously recognized, but the context—a cross-border shooting—is significantly “different . . . from previous Bivens cases.” Abbasi, supra, ___. It involves a “risk of disruptive intrusion by the Judiciary into the functioning of other branches.” Abbasi, supra, ___. Pp. 8–9.

(c) Multiple, related factors counsel hesitation before extending Bivens remedies into this new context. Pp. 9–19.

(1) The expansion of a Bivens remedy that impinges on foreign relations—an arena “so exclusively entrusted to the political branches . . . as to be largely immune from judicial inquiry,” Haig v. Agee, 453 U. S. 280, 292—risks interfering with the Executive Branch’s “lead role in foreign policy,” Medellín v. Texas, 552 U. S. 491, 524. A cross-border shooting affects the interests of two countries and, as happened here, may lead to disagreement. It is not for this Court to arbitrate between the United States and Mexico, which both have legitimate and important interests at stake and have sought to reconcile those interests through diplomacy. Pp. 9–12.

(2) Another factor is the risk of undermining border security. The U. S. Customs and Border Protection Agency is responsible for preventing the illegal entry of dangerous persons and goods into the United States, and the conduct of their agents positioned at the border has a clear and strong connection to national security. This Court has not extended Bivens where doing so would interfere with the system of military discipline created by statute and regulation, see, e.g., Chappell v. Wallace, 462 U. S. 296, and a similar consideration is applicable to the framework established by the political branches for addressing cases in which it is alleged that lethal force at the border was unlawfully employed by a border agent. Pp. 12–14.

(3) Moreover, Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside U. S. borders. For example, recovery under 42 U. S. C. §1983 is available only to “citizen[s] of the United States or other person[s] within the jurisdiction thereof.” The Federal Tort Claims Act bars “[a]ny claim arising in a foreign country.” 28 U. S. C. §2680(k). And the Torture Victim Protection Act of 1991, note following 28 U. S. C. §1350, cannot be used by an alien to sue a United States officer. When Congress has provided compensation for injuries suffered by aliens outside the United States, it has done so by empowering Executive Branch officials to make payments under circumstances found to be appropriate. See, e.g., Foreign Claims Act, 10 U. S. C. §2734. Congress’s decision not to allow suit in these contexts further indicates that the Judiciary should not create a cause of action that extends across U. S. borders either. Pp. 14–18.

(4) These factors can all be condensed to the concern for respecting the separation of powers. The most important question is whether Congress or the courts should create a damages remedy. Here the answer is Congress. Congress’s failure to act does not compel the Court to step into its shoes. Pp. 19–20.

885 F. 3d 811, affirmed.

Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

Rodriguez, as chapter 7 trustee for the Bankruptcy Estate of United Western Bancorp, Inc. v. Federal Deposit Insurance Corporation, as receiver for United Western Bank

Certiorari To The United States Court Of Appeals For The Tenth Circuit

No. 18-1269. Argued December 3, 2019--Decided February 25, 2020

The Internal Revenue Service (IRS) allows an affiliated group of corporations to file a consolidated federal return. See 26 U. S. C. §1501. The IRS issues any refund as a single payment to the group’s designated agent. The tax regulations say very little about how the group members should then distribute that refund among themselves. If a dispute arises and the members have no tax allocation agreement in place, federal courts normally turn to state law to resolve the distribution question. Some courts, however, have crafted their own federal common law rule, known as the Bob Richards rule. See In re Bob Richards Chrysler-Plymouth Corp., 473 F. 2d 262. The rule initially provided that, in the absence of an agreement, a refund belongs to the group member responsible for the losses that led to it. But it has since evolved, in some jurisdictions, into a general rule that is always followed unless an agreement unambiguously specifies a different result. Soon after United Western Bank suffered huge losses, its parent, United Western Bancorp, Inc., was forced into bankruptcy. When the IRS issued the group a $4 million tax refund, the bank’s receiver, respondent Federal Deposit Insurance Corporation (FDIC), and the parent corporation’s bankruptcy trustee, petitioner Simon Rodriguez, each sought to claim it. The dispute wound its way through a bankruptcy court and a federal district court before the Tenth Circuit examined the parties’ tax allocation agreement, applied the more expansive version of Bob Richards, and ruled for the FDIC.

Held: The Bob Richards rule is not a legitimate exercise of federal common lawmaking. Federal judges may appropriately craft the rule of decision in only limited areas, Sosa v. Alvarez-Machain, 542 U. S. 692, 729, and claiming a new area is subject to strict conditions. One of the most basic is that federal common lawmaking must be “ ‘necessary to protect uniquely federal interests.’ ” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640. The Bob Richards rule has not satisfied this condition. The federal courts applying and extending Bob Richards have not pointed to any significant federal interest sufficient to support the Bob Richards rule. Nor have the parties in this case. State law is well-equipped to handle disputes involving corporate property rights, even in cases, like this one, that involve federal bankruptcy and a tax dispute. Whether this case might yield the same or a different result without Bob Richards is a matter the court of appeals may take up on remand. Pp. 4–6.

914 F. 3d 1262, vacated and remanded.

Gorsuch, J., delivered the opinion for a unanimous Court.

McKinney v. Arizona

Certiorari To The Supreme Court Of Arizona

No. 18-1109. Argued December 11, 2019--Decided February 25, 2020

An Arizona jury convicted petitioner James McKinney of two counts of first-degree murder. The trial judge found aggravating circumstances for both murders, weighed the aggravating and mitigating circumstances, and sentenced McKinney to death. Nearly 20 years later, the Ninth Circuit held on habeas review that the Arizona courts violated Eddings v. Oklahoma, 455 U. S. 104, by failing to properly consider as relevant mitigating evidence McKinney’s posttraumatic stress disorder. McKinney’s case then returned to the Arizona Supreme Court. McKinney argued that he was entitled to a jury resentencing, but the Arizona Supreme Court itself reweighed the aggravating and mitigating circumstances, as permitted by Clemons v. Mississippi, 494 U. S. 738, and upheld both death sentences.

Held: A Clemons reweighing is a permissible remedy for an Eddings error, and when an Eddings error is found on collateral review, a state appellate court may conduct a Clemons reweighing on collateral review. McKinney’s argument that a jury must resentence him does not square with Clemons, where the Court held that a reweighing of the aggravating and mitigating evidence may be conducted by an appellate court. 494 U. S., at 741. Because Clemons involved an improperly considered aggravating circumstance, McKinney maintains that it is inapposite here, where the case involves an improperly ignored mitigating circumstance. Clemons, however, did not depend on any unique effect of aggravators as distinct from mitigators. For purposes of appellate reweighing, there is no meaningful difference between subtracting an aggravator from one side of the scale and adding a mitigator to the other side. McKinney also argues that Clemons is no longer good law in the wake of Ring v. Arizona, 536 U. S. 584, and Hurst v. Florida, 577 U. S. ___, where the Court held that a jury must find the aggravating circumstance that makes the defendant death eligible. But that does not mean that a jury is constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range. See Apprendi v. New Jersey, 530 U. S. 466, 481. McKinney notes that the Arizona trial court, not the jury, made the initial aggravating circumstance finding that made him eligible for the death penalty. But McKinney’s case became final on direct review long before Ring and Hurst, which do not apply retroactively on collateral review, see Schriro v. Summerlin, 542 U. S. 348, 358, and the Arizona Supreme Court’s 2018 decision reweighing the aggravators and mitigators did not constitute a reopening of direct review. Pp. 2–7.

245 Ariz. 225, 426 P. 3d 1204, affirmed.

Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Gorsuch, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.

Monasky v. Taglieri

Certiorari To The United States Court Of Appeals For The Sixth Circuit

No. 18-935. Argued December 11, 2019--Decided February 25, 2020

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention), implemented in the United States by the International Child Abduction Remedies Act, 22 U. S. C. §9001 et seq., provides that a child wrongfully removed from her country of “habitual residence” ordinarily must be returned to that country.

Petitioner Monasky, a U. S. citizen, asserts that her Italian husband, respondent Taglieri, became abusive after the couple moved to Italy from the United States. Two months after the birth of the couple’s daughter, A. M. T., in Italy, Monasky fled with the infant to Ohio. Taglieri petitioned the U. S. District Court for the Northern District of Ohio for A. M. T.’s return to Italy under the Convention, pursuant to 22 U. S. C. §9003(b), on the ground that the child had been wrongfully removed from her country of “habitual residence.” The District Court granted Taglieri’s petition, concluding that the parents’ shared intent was for their daughter to live in Italy. Then two-year-old A. M. T. was returned to Italy. The en banc Sixth Circuit affirmed. Under its precedent, the court first noted, an infant’s habitual residence depends on the parents’ shared intent. It then reviewed the District Court’s habitual-residence determination for clear error and found none. In doing so, the court rejected Monasky’s argument that Italy could not qualify as A. M. T.’s “habitual residence” in the absence of an actual agreement by her parents to raise her there.


1. A child’s habitual residence depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents. Pp. 7–14.

(a) The inquiry begins with the Convention’s text “and the context in which the written words are used.” Air France v. Saks, 470 U. S. 392, 397. The Convention does not define “habitual residence,” but, as the Convention’s text and explanatory report indicate, a child habitually resides where she is at home. This fact-driven inquiry must be “sensitive to the unique circumstances of the case and informed by common sense.” Redmond v. Redmond, 724 F. 3d 729, 744. Acclimation of older children and the intentions and circumstances of caregiving parents are relevant considerations, but no single fact is dispositive across all cases. The treaty’s “negotiation and drafting history” corroborates that habitual residence depends on the specific circumstances of the particular case. Medellín v. Texas, 552 U. S. 491, 507. This interpretation also aligns with habitual-residence determinations made by other nations party to the Convention. Pp. 7–12.

(b) Monasky’s arguments in favor of an actual-agreement requirement are unpersuasive. While an infant’s “mere physical presence” is not a dispositive indicator of an infant’s habitual residence, a wide range of facts other than an actual agreement, including those indicating that the parents have made their home in a particular place, can enable a trier to determine whether an infant’s residence has the quality of being “habitual.” Nor is adjudicating a dispute over whether an agreement existed a more expeditious way of promoting returns of abducted children and deterring would-be abductors than according courts leeway to consider all the circumstances. Finally, imposing a categorical actual-agreement requirement is unlikely to be an appropriate solution to the serious problem of protecting children born into domestic violence, for it would leave many infants without a habitual residence, and therefore outside the Convention’s domain. Domestic violence should be an issue fully explored in the custody adjudication upon the child’s return. The Convention also has a mechanism for guarding children from the harms of domestic violence: Article 13(b) allows a court to refrain from ordering a child’s return to her habitual residence if “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Pp. 12–14.

2. A first-instance habitual-residence determination is subject to deferential appellate review for clear error. A trial court’s habitual-residence determination presents a mixed question of law and fact that is heavily fact laden. The determination thus presents a task for factfinding courts and should be judged on appeal by a clear-error review standard. See U. S. Bank N. A. v. Village at Lakeridge, LLC, 583 U. S. ___, ___–___. There is no “historical tradition” indicating otherwise. Pierce v. Underwood, 487 U. S. 552, 558. Clear-error review has a particular virtue in Hague Convention cases: By speeding up appeals, it serves the Convention’s emphasis on expedition. Notably, courts of other treaty partners also review first-instance habitual-residence determinations deferentially. Pp. 14–16.

3. Given the circumstances of this case, it is unnecessary to disturb the judgment below and remand the case to give the lower courts an opportunity to apply the governing totality-of-the-circumstances standard in the first instance. Pp. 16–17.

907 F. 3d 404, affirmed.

Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., joined, and in which Thomas, J., joined as to Parts I, III, and IV. Thomas, J., and Alito, J., filed opinions concurring in part and concurring in the judgment.