This afternoon the justices issued additional orders from their October 7 conference, adding three new hours of oral argument to their merits docket for the term. And if there is a public perception that the justices have been avoiding controversial issues since the death of Justice Antonin Scalia earlier this year, today’s order list belied that assessment, as the justices agreed to take on cases challenging the cross-border shooting of a Mexican citizen and detentions in the wake of the September 11 attacks.
Hernandez v. Mesa is a case brought by the family of Sergio Hernandez, a fifteen-year-old who was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, as he played in a culvert along the U.S.-Mexico border. Hernandez was on the Mexican side of the border when he was shot. The lawsuit against Mesa alleged (among other things) that the agent’s conduct violated the Fourth Amendment’s bar against excessive deadly force. The lower court ruled that the Fourth Amendment’s protections did not extend to Hernandez, because he was a Mexican citizen who lacked any real connection to the United States and was in Mexico when he was shot. The question that the court agreed to review today is what standard courts should use to determine whether the Fourth Amendment applies outside the United States. The justices also agreed to consider whether Mesa is immune from suit because he did not know at the time of the shooting that Hernandez was not a U.S. citizen, and they asked both sides to brief a third question: whether Hernandez’s parents can rely on a 1971 case, Bivens v. Six Unknown Federal Narcotics Agents, in which the court ruled that a violation of the Fourth Amendment by federal government officials could give rise to a lawsuit for damages. In a brief filed at the court’s request earlier this year, the United States had suggested that Hernandez’s parents cannot rely on Bivens because the remedy recognized in that case “should not be extended to the sensitive cross-border context of this case.”
The issues of immunity for federal officials and lawsuits brought under Bivens are also at the center of Ziglar v. Turkmen, Ashcroft v. Turkmen, and Hasty v. Turkmen, three cases arising out of the arrest and detention of Middle Eastern men in the wake of the September 11 attacks. The men, who were all present in the United States illegally when they were arrested and detained for immigration violations, allege that the defendants in the case – a former U.S. attorney general, a former FBI director, a former commissioner of the Immigration and Naturalization Services, and the wardens at a detention center – knew that “they were subjecting individuals with no ties to terrorism to unnecessary and punitive conditions of confinement.” The U.S. Court of Appeals for the 2nd Circuit allowed the lawsuits to go forward, and today the justices agreed to review that ruling, consolidating the three cases for one hour of oral argument. There are three questions before the justices: whether the plaintiffs can rely on the court’s decision in Bivens to bring their claims; whether the officials are entitled to immunity from suit; and whether the lower court applied the proper standard to determine whether the plaintiffs’ complaint can survive a motion to dismiss. When the justices hear oral argument (probably in January), there will be only six justices on the bench. Justices Sonia Sotomayor and Elena Kagan are both recused from the case – presumably because Sotomayor was involved in the case when she sat on the U.S. Court of Appeals for the 2nd Circuit and Kagan was involved in the case when she served as the U.S. solicitor general.
In Midland Funding v. Johnson, the justices will consider the intersection of the bankruptcy code and the Fair Debt Collection Practices Act. The case has its roots in Midland Funding’s purchase of a debt that Aleida Johnson owed to a credit card company, on which she had defaulted. When Johnson later filed for bankruptcy, Midland Funding filed a proof of claim – a notification that a creditor seeks to obtain funds from the person or entity that has declared bankruptcy. Johnson objected to the claim on the ground that it had come too late, and the bankruptcy court agreed. Johnson then filed a lawsuit against Midland Funding, arguing that the burden of proof violated the FDCPA, which prohibits debt collectors from using unfair, deceptive, or misleading practices to collect a debt. The district court dismissed the case, but the 11th Circuit reinstated it. There are two questions now before the justices: whether Midland Funding in fact violated the FDCPA when it filed an accurate, but late, proof of claim in the bankruptcy proceeding; and whether the bankruptcy code precludes a lawsuit under the FDCPA on the ground that the defendant filed a proof of claim too late. The court’s decision to grant review was made easier by the fact that Johnson did not oppose the petition for review, but instead urged the court to take on the case.