Crossfire over Cross-Border Shootings: Does Bivens Extend to Foreign Nationals Killed Abroad by American Agents?

BACKGROUND

In 42 U.S.C. §1983, Congress provides a damages remedy for the violation of constitutional rights by state officials, but no such provision for federal officials exists. The Supreme Court recognized in Bivens v. Six Unknown Named Agents (1971) that an implied damages action could be brought against a federal official who violated the Fourth Amendment protection against unreasonable searches and seizures. In Ziglar v. Abbasi (2017), the Court rejected a Bivens claim from undocumented immigrants who were detained after the September 11 terrorist attacks. The Court held that, for a novel Bivens claim to succeed, it must be accompanied by some special factor that justifies the judiciary—as opposed to Congress—allowing such a suit for damages against federal officials. In Abbasi, that “special factor” did not exist.

The Court simultaneously declined to hand down an opinion in Hernandez v. Mesa (2017), a case appealed from the Fifth Circuit, in which the court held that a Mexican citizen killed on Mexican soil by a United States border agent is not protected by the Constitution. The Court remanded Hernandez to the Fifth Circuit in light of the Court’s holding in Abbasi.

ISSUE

Following Abbasi, can a suit for damages against a federal agent involving a cross-border shooting be sustained under Bivens?

THE SPLIT

Since the Abbasi decision, the Fifth and Ninth Circuits have applied it differently to cross-border shootings. When Hernandez was remanded, the Fifth Circuit applied Abbasi and ruled in 2018 that Bivens did not extend to the shooting. The court held that the cross-border shooting at issue did represent a “new context” for Bivens claims—specifically, the court noted that the case raised questions about the Constitution’s extraterritorial applicability to foreign nationals that the Supreme Court has not answered.

The court then looked to special factors before extending Bevins. Applying Abbasi’s separation-of-powers analysis, the court found three special factors in the Hernandez claims. First, the court contended that this proposed extension of Bivens would upset the existing separation of powers, which places national security under the purview of Congress and the President. More specifically, the court held that the threat of Bivens liability could undermine the Border Patrol’s ability to perform duties essential to national security—a responsibility specially granted by Congress.

Second, the court reasoned that extending Bivens in this instance would risk interference with foreign affairs. The court observed that by extending Bivens to cover a cross-border shooting, it would contradict the Executive Branch’s policy decision to deny extradition of the federal agent and to refuse to prosecute the agent. Therefore, the judiciary stepping in could unduly complicate American-Mexican foreign relations.

Third, the court held that Congress’s failure to provide a damages remedy in these circumstances is telling. The court found that silence to be intentional and thus illustrative of a purposeful gap in remedy for these types of cases.

But just months after the Hernandez decision from the Fifth Circuit, the Ninth Circuit handed down a ruling on the same issue. In Rodriguez v. Swartz, plaintiff alleges that Border Agent Swartz, without provocation, shot and killed a 16-year-old boy walking down a street in Mexico.  In Rodriguez, the Ninth Circuit held that the mother of the Mexican citizen who was shot and killed in Mexico by a United States federal agent had a cause of action against the agent. Splitting with the Fifth Circuit, the Ninth Circuit applied the “new context” element of Bivens more narrowly, holding that applying the Fourth Amendment to these cases would only mean that federal officers cannot shoot people without reason.

Turning to special factors, the court differentiated Abbasi—it emphasized that there, the Court considered detention policies after September 11, not at all seizures and general incarceration policies. Therefore, the relevant examination under Abbasi was with the specific facts alleged, not cross-border shootings generally. And by narrowing the scope to the individual shooting, the court found that extending Bivens to allow the Mexican mother’s claim would not implicate national security: “[N]o one suggests that national security involves shooting people who are just walking down a street in Mexico.” Further, allowing liability here would not deter border patrol agents from performing their duties.

Finally, the Ninth Circuit held that extending Bivens would not harm America’s diplomatic efforts or complicate foreign policy. Instead, “it would threaten international relations if we declined to extend a cause of action, because it would mean American courts could not give a remedy for a gross violation of Mexican sovereignty.”

Taken together, the Ninth Circuit interpreted these factors to hold that Bivens can be extended to this class of cases.

LOOKING AHEAD

In remanding Hernandez, the Supreme Court allowed lower courts to apply Abbasi and extend Bivens where appropriate. Given that two circuits have already disagreed on the meaning and application of Abbasi in cross-border shootings in just a year, the issue seems ripe for Supreme Court review. Additionally, three Justices have already articulated their positions on this issue: in remanding Hernandez, Justices Breyer and Ginsburg authored dissents in support of allowing the plaintiffs to bring suit, and Justice Thomas issued a separate dissent indicating that he would have sided with the defendants.

Reading the Tea Leaves of the Tea Rose-Rectanus Doctrine: What Test Should Be Used to Determine “Good Faith” Trademark Use?

BACKGROUND

 The Tea Rose-Rectanus Doctrine is a common law trademark canon that establishes the geographic extent of trademark rights held by senior users of a mark. Arising out of two century-old Supreme Court cases, the doctrine is a defense to trademark infringement that allows junior users of a trademark to have priority for a trademark if they use the mark (1) in “good faith”; (2) in a geographical territory remote and distinct from the territory where the senior uses the trademark; and (3) in a geographic region where the junior use of the mark will not be mistaken for the senior user of the same mark.

Even when a trademark registrant successfully obtains a federal nationwide trademark, their exclusive rights to that trademark does not completely extend across and cover the entire United States. The 9th Circuit explained how the common-law rights of a trademark holder practically work in Stone Creek, Inc. v. Omnia Italian Designs, Inc. (2017):

Under this rule, already-established common-law rights are carved out of the registrant’s scope of protection. In other words, the geographic scope of a senior user’s rights in a registered trademark looks like Swiss cheese: it stretches throughout the United States with holes cut out where others acquired common-law rights prior to the registration.

THE ISSUE

The issue with the Tea Rose-Rectanus Doctrine is the meaning of “good faith” usage a junior trademark user must have to successfully use the defense. For example, does a junior’s knowledge of the senior’s trademark rights constitute a lack of “good faith” resulting in the elimination of the availability of a Tea Rose-Rectanus defense? A circuit split has developed in answering this question.

THE SPLIT

The 9th Circuit recognized the split in this question in Omnia, and observed that the circuits divided into two general camps: (1) those holding that knowledge on its own destroys good faith and (2) those holding that knowledge is merely part of a larger “good faith” test. At its heart, the question is whether mere knowledge is sufficient to destroy good faith or if that knowledge must be accompanied with an intent to benefit from the reputation of the senior user.

The 9th Circuit opted for the former test, and joined the 7th and 8th Circuits in holding that a junior user simply having knowledge of a senior’s use and rights is sufficient to destroy good faith on its own. The 7th Circuit defined a “good faith junior user” as one who “begins using a mark with no knowledge that someone else is already using it” in Money Store v. Harriscorp Fin., Inc. (1982). Neither the 7th nor the 8th Circuits sought to interpret a junior user’s intent with their mark use after acquiring knowledge of the senior user’s usage. All that is examined is whether the junior had that knowledge and whether they continued to use the mark—regardless of the reason why.

The 9th Circuit agreed and further contended that the original doctrine-creating cases, Hanover Star Milling Co., v. Metcalf (1916) and United Drug Co. v. Theodore Rectanus Co. (1918), support its position. The court in Metcalf (or the Tea Rose Case), held that the junior user “adopted and used [the mark] in good faith without knowledge or notice that the name ‘Tea Rose’ had been adopted or used by the [senior user], or by anybody else.”

A similar holding exists in Rectanus, which the 9th Circuit takes to mean that the omission of any mention of any element beyond simple knowledge.

The 5th and 10th Circuits split with the 7th, 8th, and 9th, however, and instead hold that knowledge alone is not sufficient to destroy good faith. The 10th Circuit, in GTE Corp. v. Williams (1986), acknowledges that there is precedent for knowledge being sufficient to destroy good faith, the court refuses to apply such a narrow test. The court held that “the ultimate focus is on whether the second user had the intent to benefit from the reputation or goodwill of the first user.” The 5th Circuit reached a similar result in Pebble Beach Co. v. Tour 18 Ltd. (1998), holding that knowledge of prior use by the senior user is just one element of a good faith test.

LOOKING FORWARD

Omnia Italian Designs filed a writ of certiorari in November 2017 seeking a definitive answer to whether mere knowledge of senior use destroys good faith in trademark use or whether knowledge is just a part of a larger “good faith test.” The Supreme Court denied the petition in May 2018, leaving the question unresolved.

Because of the certiorari denial, junior users of trademarks are held to different standards depending on where they reside in the country. Where one may be permitted to continue using a mark they have used for months, years, or decades, another may be forced to completely change the image of their business. Additionally, junior users in the 6 remaining circuits—those that have not decided which good faith test it will use—are left in the dark as to whether they will be permitted to continuing using their names and logos if they are sued.

With corporations acquiring trademarks either by absorbing smaller businesses or by filing federal trademarks for new ventures constantly, smaller businesses using the same marks may encounter legal issues with their continued use that they could not predict—and these harms flow directly from the split. A definitive and final “good faith test” for the Tea Rose-Rectanus doctrine would eliminate much of the ambiguity found in determining the viability of that doctrine as a defense and would allow business owners to situate their businesses in a way that would avoid lawsuits.

The Tapia Tap Dance: When Does Considering Rehabilitation in Imposing a Sentence Violate Tapia?

BACKGROUND

In 1984, Congress passed the Sentencing Reform Act, as part of the Comprehensive Crime Control Act. The Act, among other things, abolished federal parole in all but a few instances and created the United States Sentencing Commission. It also required courts to consider the factors outlined in 18 U.S.C. § 3553(a)—which include the nature of the crime, the characteristics of the defendant, the justification for the sentence, the kinds of available sentences, any relevant policies promulgated by the Sentencing Commission, the need for consistency, and the value of any potential restitution to victims.

However, §3582 of the Act went one step further. In a nod to concerns about excessive prison sentences imposed during the height of the War on Drugs, it provided that the above factors should be considered while also “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.” In Tapia v. United States (2011), the Supreme Court interpreted that provision of the Act to mean that “the Sentencing Reform Act precludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant’s rehabilitation.”

THE ISSUE

What is the standard for determining when a sentencing court violates Tapia? When a court considers rehabilitation in imposing a sentence at all, does it violate Tapia? Or is Tapia only violated when a sentencing court uses rehabilitation as the determining factor?

THE SPLIT

As it turns out, every Circuit in the country—save for the D.C. Circuit—has taken a position on this issue. They’re divided into two camps.

The Seventh, Ninth, Tenth, and Eleventh Circuits apply an easy-to-satisfy standard: they hold that Tapia is violated when the sentencing judge even considers rehabilitation or bases his sentence even in part on rehabilitation. As articulated by the Tenth Circuit in United States v. Thornton (2017), for example, “A rule requiring reversal only when rehabilitation is the sole motivation would not make sense. The federal sentencing statute mandates that judges consider other factors. . . . Therefore, there will almost always be some valid reasons advanced by the district court for imposing the sentence issued.” The Eleventh Circuit in United States v. Vandergrift (2014) arrived at the same conclusion, and based its analysis on an interpretation “faithful to Tapia’s reasoning.” It noted that the Supreme Court held that sentencing courts “‘should consider the specified rationales of punishment except for rehabilitation’” when “determining whether to impose or lengthen a sentence of imprisonment.” Accordingly, any consideration of rehabilitation is improper.

The First, Second, Third, Fourth, Fifth, Sixth, and Eighth Circuits come out differently. For a sentencing court to run afoul of Tapia, they require a demonstration that rehabilitation was the determining factor in the sentencing court’s decision to impose or enhance a sentence in order to find a Tapia violation. They, too, base their rationale in the Supreme Court’s language in Tapia. For example, in United States v. Garza (2018), the Fifth Circuit noted:

in Tapia the Court made clear that “[a] court commits no error by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs.” A district court also may legitimately “urge the [Bureau of Prisons] to place an offender in a prison treatment program.” However, when the district court’s concern for rehabilitative needs goes further—when the sentencing record discloses “that the court may have calculated the length of [the defendant’s] sentence to ensure that she receive certain rehabilitative services”—§ 3582(a) has been violated.

Similarly, in United States v. Bennett (2012), the Fourth Circuit focused on looking at the specific error that the Supreme Court was attempting to remedy in Tapia. To glean the Supreme Court’s meaning, it looked at the sentencing court’s proceedings in Tapia and observed that the district court judge said that the “‘number one’ consideration ‘[was] the need to provide treatment.’” It observed that the Tapia decision was a “close question . . . whether the rehabilitation rationale drove the sentencing decision,” despite the sentencing court’s brazen discussion of rehabilitation. Accordingly, the Court couldn’t possibly mean that a district court judge’s mere discussion of rehabilitation ran afoul of Tapia.

The Third Circuit, which arrived at a conclusion on the proper interpretation of Tapia only ten days ago, articulated a related—but distinct—rationale. It noted in United States v. Schonewolf (2018) that that the first approach, taken by the Seventh, Ninth, Tenth, and Eleventh Circuits, would “risk a chilling effect on district courts ‘discussing the opportunities for rehabilitation within prison,’ a subject that ‘a court properly may address.’”

LOOKING FORWARD

Given that virtually every Circuit in the country has arrived at a conclusion on the meaning of Tapia—and that those meanings differ and are supported by different rationales—the Supreme Court has a strong incentive to take an appeal from one of these cases to resolve the split. Even more persuasively, the Sentencing Reform Act was intended to promote consistency in sentencing across the country. It’s a cruel twist of irony for the drafters of the Act that it, in turned, spurred even more inconsistency.

Do Federal Courts Have Jurisdiction over Civil Actions under the Federal Tort Claims Act by Immigrants Alleging Wrongful Removal from the United States?

The Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) allows those who have suffered an injury, or whose property is damaged, to file a claim with the federal government for reimbursement for that injury or damage. Under 28 U.S.C. § 2674, the federal government recognizes its liability for the negligent or wrongful acts or omissions of its employees acting within the scope of their official duties. The FTCA positions the United States—not the individual employee—as the defendant, and transfers all liability to the federal government. Therefore, the United States is liable the same way that a private party would be liable in a normal civil action.

The Issue

Two cases, each with similar factual backgrounds, help illustrate the question at hand. In both cases, the plaintiffs—Lopez Silva and Claudio Anaya Arce—were erroneously deported and subsequently sued the federal government under the FTCA. In Silva’s case, he was a Mexican citizen who resided in the United States as a lawful permanent resident since 1992. After he was convicted of two criminal offenses in Minnesota, the Department of Homeland Security commenced removal proceedings against him in 2012. Silva appealed to the Board of Immigration Appeals, which issued a stay of Silva’s removal while his appeal was pending. However, in July 2013, DHS mistakenly removed Silva to Mexico before the BIA heard his appeal. DHS subsequently returned Silva to the United States several months later. An immigration judge subsequently granted Silva’s application for cancellation of his removal—allowing him to lawfully remain in the country.

In Arce’s case, he was apprehended by Customs and Border Patrol and detained in Adelanto, California in April 2014. He expressed a fear of harm if he was removed to Mexico, but an asylum officer determined that he had not demonstrated a reasonable fear of persecution or torture. This decision was affirmed by an immigration judge on February 4, 2015, and the DHS began the process of removing him to Mexico. However, on February 6, Arce filed an emergency petition for review and a motion for a stay of removal with the Ninth Circuit. The court immediately issued a temporary stay of removal, but Arce was removed to Mexico later that day—despite the fact that Arce’s counsel put DHS on notice of the stay. Arce remained in Mexico until February 20, when he was returned to the United States.

Both Silva and Arce sued the federal government for harm arising from their unlawful removal. The District Courts of Minnesota and the Central District of California dismissed both cases on the ground that Section 242(g) of the Immigration and Nationality Act deprived them of jurisdiction. Specifically, they held Section 242(g), which applies to agency decisions or actions to “commence proceedings, adjudicate cases, or execute removal orders” divested them of subject-matter jurisdiction. Silva and Arce appealed to the Eighth and Ninth Circuits, respectively.

The Circuit Split

Both cases raise the question: do federal courts have jurisdiction over civil actions brought under the FTCA by immigrants alleging wrongful removal from the United States?

In Silva v. United States (2017), the Eighth Circuit affirmed the district court’s decision in a 2-1 ruling that it lacked jurisdiction under the FTCA. The court held that Silva’s claims were directly connected to the execution of the removal order, and that Section 242(g) applied to bar the plaintiff’s civil action.

Judge Kelly dissented, however, and argued that the United States Supreme Court rejected the assumption that Section 242(g) covered that kind of deportation claim in Reno v. American-Arab Anti-Discrimination Committee (1999). She would have held that the mandatory automatic stay in Silva’s case “suspended the source of authority for the agency to act” on the removal order and therefore “temporarily divested the order of enforceability.” Accordingly, Silva’s claims did not arise “from the government’s decision or action to execute a removal order,” because a valid removal order did not exist at the time he was removed. She noted that the Third Circuit had held in Garcia v. Attorney General (2009), that Section 242(g) doesn’t apply when the petitioner is challenging the government’s authority to commence removal proceedings, not the discretionary decision to commence proceedings.

The Ninth Circuit charted a different course than the Eighth Circuit, and instead embrace the position that Judge Kelly articulated in dissent. In Arce v. United States (2018), the court rejected the government’s argument that Arce’s claims were foreclosed by Section 242(g) because they arose from the Attorney General’s decision or action to execute the removal order. Citing Judge Kelly’s dissent in Silva, the court held that the statute does not “sweep as broadly as the government contends.” Arce, it found, was not attacking the removal itself but the authority of the Attorney General to execute the removal order in light of the stay of removal that the court had issued.

Looking Forward

Though these cases have mostly flown under the radar—especially given the recency of the Ninth Circuit’s opinion—they raise important ramifications for those who wish to bring claims under the FTCA for wrongful removal. In many ways, this split is a perfect embodiment of the reason that the Supreme Court wishes to avoid circuit splits in the first place. In some parts of the country, the federal government is financially liable for actions that it is not liable for in other parts of the country, raising the need for the Supreme Court to resolve the split.