In just over two weeks, the Supreme Court will meet for the so-called “long conference” – the first regularly scheduled conference since early July at which it will consider new petitions for review. The justices will have hundreds of petitions before them, but last year they agreed to add only 12 cases to their docket for the 2023-24 term. In an earlier post, I covered several cases that are likely to garner attention at the long conference; this post covers three more.

An appeal to limit (or overrule) Bivens

More than 50 years ago, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Supreme Court ruled that a private person could sue a federal agent for violating his Fourth Amendment rights, even when there was not a specific law authorizing a claim for damages.

In the nine years that followed their decision in Bivens, the justices recognized Bivens claims for damages for violations of the Fifth and Eighth Amendments. But in 2017, the court stressed that “expanding the Bivens remedy is now a disfavored remedy.” And two of the court’s members – Justices Clarence Thomas and Neil Gorsuch – have called on the court to overrule Bivens altogether.

Donald Snowden’s lawsuit against Special Agent Jeremy Henning of the Drug Enforcement Administration has its roots in Snowden’s 2019 arrest at a Quality Inn in Carbondale, Ill. Snowden was staying at the hotel when the front desk called his room, asking him to come to the lobby to pay his bill.

Snowden had recently been indicted on federal charges for distributing methamphetamine, and there was a warrant for his arrest. In the course of arresting him, Snowden says, Henning pushed him to the ground and punched him several times in the face, leaving him with two black eyes and a fracture in one of the bones surrounding his left eye.

Snowden filed a lawsuit against Henning in federal court in Illinois. He relied (among other things) on Bivens, arguing that Henning had violated the Fourth Amendment by using excessive force during the arrest.

The district court dismissed Snowden’s Bivens claim, but the U.S. Court of Appeals for the 7th Circuit reinstated it. It explained that courts consider two factors when considering whether to extend Bivens: first, whether the plaintiff’s case involves a new context when compared with the original Bivens case; and, if so, whether there are “special factors” suggesting that Congress, rather than the courts, would be best suited to decide whether a damages action should go forward.

Snowden’s case could be resolved at the first step, the court of appeals reasoned, because it did not involve a new context. There was “no meaningful difference between Snowden’s case and Bivens to suggest that he should not be able to pursue this excessive-force claim.” Both cases, the court of appeals noted, involved a line-level narcotics officer enforcing federal drug laws, and both plaintiffs alleged that officers “used unreasonable force in an arrest.”

Henning came to the Supreme Court in March, asking the justices to review the 7th Circuit’s decision. In particular, Henning said, the justices should weigh in on whether – contrary to the lower court’s ruling – a case occurs in the same context as Bivens when it involves an arrest that occurs outside the home (while the one in Bivens occurred in the home) or when officers have a warrant (which they did not in Bivens).

The 7th Circuit, Henning argues, “overlooked the multiple ways the differences between this case and Bivens alter ‘the costs and benefits of allowing a defendant’s action to proceed.’” But whether to allow a lawsuit to go forward in such a scenario, Henning contends, “is precisely the sort of question Congress is better equipped than the courts to answer.”

Indeed, Henning continues, the disagreement among the lower courts on basic questions like the significance of where the arrest is made and whether there was a warrant for the plaintiff’s arrest in cases like this one suggests that the inquiry into whether a case involves the same context as the original Bivens case “is unworkable,” so that “Bivens should be overruled altogether.”

Snowden urges the justices to deny review and stay out of the dispute. He insists that his case falls within the “heartland of Bivens.” “As far as the allegations and claims in this case are concerned,” he stresses, “Agent Henning is materially indistinguishable from the six federal narcotics agents who used excessive force against Webster Bivens in the course of arresting him.”

The Dobbs decision leads to a dispute over the separation of powers in Guam

More than two years after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to an abortion, the attorney general of Guam has asked the justices to weigh in on a separation-of-powers dispute arising from the abortion debate.

In 1990, Guam’s legislature passed a law that would largely ban abortion in the territory. The law never went into effect, however, because both a federal district court and the U.S. Court of Appeals for the 9th Circuit ruled that it was unconstitutional and put the law on hold permanently.

In the wake of the Dobbs decision, Guam Attorney General Douglas Moylan went to federal court, seeking to revive the 1990 law.

The territory’s governor, Lourdes Leon Guerrero, was among those who opposed Moylan’s request. Guerrero also went to the Guam Supreme Court, asking it to rule that the 1990 law was no longer in effect or that it had been effectively repealed by the territory’s legislature through a series of later laws regulating abortion that, Guerrero argued, could not be reconciled with the 1990 law.

The Guam Supreme Court agreed that the 1990 law had been impliedly repealed. To reach that conclusion, the court relied on a provision of territorial law that gives it power to issue declaratory judgments – that is, rulings even when neither side has been injured – to quickly resolve a purely legal issue that is important to the territory.

Moylan came to the U.S. Supreme Court earlier this year, asking the justices to weigh in on whether the territorial law on which the Guam Supreme Court relied violates the principle of separation of powers. He stressed that Congress has not given the Supreme Court of Guam the power to issue opinions that provide advice on purely hypothetical legal questions. If the decision is allowed to stand, he contended, it “threatens grave consequences for Guam’s system of government and for Guam’s place in the federal system.”

Guerrero countered that Moylan’s “true target is the Guam legislature—which, for decades, has authorized Guam’s highest court to issue declaratory judgments like the one it issued here.” But in any event, she continued, at least a dozen state supreme courts would similarly allow action in cases like this one “that would not meet the minimum requirements set for federal courts by the Constitution.”

Michigan seeks review on tolling issue

Under federal law, a state prisoner must file a petition seeking federal post-conviction relief within one year after his conviction and sentence become final. That one-year statute of limitations can in some circumstances be paused – for example, while the prisoner first seeks state post-conviction relief. In Campbell v. Kares, Michigan asks the justices to weigh in on whether that one-year clock also stops when a prisoner seeks DNA testing.

The prisoner in the case, Stephen Kares, was found guilty in 2012 of raping a 16-year-old girl, the daughter of the woman he had been dating. Kares conceded that the girl had been in his apartment, but he denied having sex with her. Instead, he suggested that DNA linking him to her must have been retrieved from a condom he had used with a different partner earlier and then discarded. Kares was sentenced to between 25 and 58 years in prison; his direct appeals were unsuccessful.

Less than one month before the deadline to file his petition for federal post-conviction relief, Kares filed a motion for post-conviction DNA testing. Several months later, he filed his petition for post-conviction relief in a federal court in Michigan.

A federal district judge ruled that Kares had filed his petition too late, because submitting his motion for DNA testing did not stop the clock. The judge also concluded that a separate claim by Kares, related to his sentencing, could not go forward because he had not raised it during his direct appeal.

The U.S. Court of Appeals for the 6th Circuit agreed with Kares that his motion for DNA testing tolled the statute of limitations, but it ultimately denied relief, holding that Kares had not justified his failure to raise his sentencing claim in state courts.

Michigan came to the Supreme Court earlier this year, asking the justices to decide whether the state law allowing a prisoner to seek DNA testing requires the kind of “judicial reexamination” of the prisoner’s conviction needed to temporarily pause the one-year statute of limitations. The state contended that the motion for DNA testing is more like a discovery request, as five other courts of appeals have held, that should not stop the clock. The state also asked the court to consider whether, in this case, Kares had even met the requirements for his DNA motion under state law.

Kares countered that it is an “obvious nonstarter” that the justices should stay out of the dispute. Granting review will make no difference in the case, he argued, because the court of appeals ruled that his sentencing claim could not go forward. He contended that “the only way a grant of certiorari makes any sense” would be if the state were to ask the justices to invalidate the part of the 6th Circuit’s decision dealing with the sentencing claim. “That way,” he concluded, “both Mr. Kares and Michigan would have an interest in this case at this junction.”