When the justices met for their conference on Monday, one of the cases that they were slated to consider was a familiar one: The case of Sergio Hernandez, a 15-year-old who was shot and killed by Jesus Mesa, a U.S. Border Patrol agent, while Hernandez was standing on the Mexican side of the U.S.-Mexico border. Hernandez’s family sued Mesa in federal court, but the lower courts dismissed their lawsuit. In 2017, the Supreme Court sent the case back to the lower court for it to take another look. The full U.S. Court of Appeals for the 5th Circuit again ruled against the family, holding that the family cannot rely on Bivens v. Six Unknown Agents, a 1971 decision in which the Supreme Court ruled that a plaintiff could bring a private federal case for damages against federal officials who allegedly violated his constitutional rights. The 5th Circuit reasoned that the family’s case was “not a garden variety excessive force case against a federal law enforcement officer”: “The transnational aspect of the facts presents a ‘new context’ under Bivens, and numerous ‘special factors’ counsel against” interference by the judiciary in the executive and legislative branches. The Hernandez family asked the Supreme Court to review that ruling, telling the justices that, if the 5th Circuit’s decision is allowed to stand, its “analysis would effectively shut the door on any and all Bivens suits that depart in even the slightest, immaterial way from the three specific fact patterns in which this Court has allowed such claims to go forward,” leaving victims like the Hernandez family without any legal remedies.
Bank Markazi v. Peterson and Clearstream Banking v. Peterson comprise the most recent chapter in the long-running efforts to obtain money to pay judgments against Iran for its support of terrorism. The respondents in this case are the victims (and their families) of the 1983 bombing of the U.S. Marine barracks in Beirut. A federal court awarded the victims nearly $4 billion in damages, part of which they are now trying to recover by seizing assets owed to Bank Markazi – Iran’s central bank – but held by Clearstream in Luxembourg. A federal district court ruled that the Foreign Sovereign Immunities Act, the federal law governing immunity for both foreign governments and their property, barred the victims from attaching the assets. But the U.S. Court of Appeals for the 2nd Circuit reversed, holding that the FSIA did not prohibit federal courts from ordering Clearstream to bring the assets to New York. Bank Markazi and Clearstream have now asked the Supreme Court to weigh in, with Bank Markazi telling the justices that the 2 nd Circuit’s ruling “upends decades of practice, creates an incoherent regime that Congress could not have intended, puts the United States in violation of international law, and threatens disastrous consequences for the Nation’s foreign relations.”
The justices already have three cases involving arbitration on their merits docket for the term starting next week, but they considered several more at their conference on Monday:
- Gerawan Farming v. Agricultural Labor Relations Board: Whether the Constitution allows California to impose a contract on a private agricultural company and its employees through compulsory arbitration;
- Credit One Bank v. Anderson: Whether an agreement that requires a customer to arbitrate disputes with his bank can be enforced under the Federal Arbitration Act even when the Bankruptcy Code has discharged the customer’s debts.
- Applied Underwriters Inc. v. Citizens of Humanity and Applied Underwriters Captive Risk Assurance Co. v. Citizens of Humanity: When a contract contains an arbitration agreement and a choice-of-law clause, does the choice-of-law clause import state substantive laws and state arbitration principles, or just the substantive laws?
Several interesting cases that had originally been distributed for Monday’s conference have been “rescheduled” – that is, removed from consideration. A pair of cases dealing with solitary confinement and the lack of outdoor exercise for inmates, Apodaca v. Raemisch and Lowe v. Raemisch, were distributed for the September 24 conference back in July but were rescheduled on September 18; there is no way to know when they (or other rescheduled cases) will be distributed again. On the same day, the court rescheduled two other criminal cases: Lance v. Sellers, involving a defense lawyer’s failure to offer evidence regarding the defendant’s dementia in a capital case; and Lacaze v. Louisiana, in which the judge who presided over a notorious triple murder in New Orleans (in which one victim was a police officer) even though he was a witness in an investigation into the gun believed to have been used in the crime. Two days later, the justices rescheduled three more cases distributed for the September 24 conference: McKee v. Cosby, the defamation case filed by one of the women who has accused comedian Bill Cosby of sexual assault; Kennedy v. Bremerton School District, involving the First Amendment rights of public school teachers and coaches; and ConAgra Grocery Products v. California and The Sherwin-Williams Co. v. California, arising from California’s efforts to hold three companies liable for their role in making, selling and promoting lead paint. And earlier this month, the justices rescheduled another high-profile case: Altitude Express v. Zarda, in which the justices have been asked to weigh in on whether federal civil rights laws bar employers from discriminating based on sexual orientation.
The decision to reschedule Altitude Express likely stems from a desire to consider the company’s petition together with a similar petition by a Michigan funeral home, which is the target of a lawsuit alleging discrimination against transgender employees. But it is harder to know why other cases were rescheduled, although certainly one possibility is that the justices may want to wait until they have a full court to consider the petitions.
For the last few years, the justices have announced grants from their Monday “long conference” on the following Thursday morning. If that practice continues this year, we could hear something about new merits cases for the upcoming term as soon as Thursday, September 27, at 9:30 am.