Hernandez v. Mesa Amicus

Also last week, I submitted a brief in Hernandez v. Mesa, the cross-border shooting case. In this case, my brief addresses the Fifth Circuit’s decision to apply the statutory presumption against extraterritoriality to a constitutional remedy for violations of the Fourth Amendment. A summary of the argument follows:

Because of the cross-border nature of the shooting at the center of this case, the lower court assumed that this case involved an extraterritorial application of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).  However, the extraterritorial aspects of this case should not be considered a “special factor” that counsels hesitation in the recognition of a remedy under Bivens.  The court below erred when it wrongfully relied on a statutory canon of construction when examining a constitutional remedy.  The concerns underlying the statutory presumption–concerns about conflicts with foreign law, U.S. sovereignty, and an assumption that Congress acts domestically, unless it clearly indicates otherwise–are not implicated here. If anything, when interpreting the Constitution, these concerns run in the opposite direction.

 And even if the presumption were applied, under this Court’s tests, the actions taken by Agent Mesa do not implicate extraterritoriality at all.  That is because when examining whether the presumption applies, courts look to the context of the statute to determine its “focus.”  Here, the context of the Constitution and the “focus” on preventing unreasonable actions by Government agents both suggest that extraterritoriality is not implicated.  Finally, the location of the shooting–in a culvert area largely controlled by the U.S. Border Patrol–is more akin to the control exercised by the United States in Guantanamo Bay, Cuba, than to those areas where the Constitution does not apply.  So application of the Bivens remedy in this context is not “extraterritorial” at all.

The complete brief can be found here.


Last week, I filed an amicus brief in the PROMESA case that the Supreme Court will be hearing on October 12. A summary of the brief’s arguments follows:

Taken to its logical conclusion, the First Circuit’s holding below would imperil self-rule in unincorporated territories. While the court tries to cabin its holding to members of the Financial Oversight and Management Board for Puerto Rico, the court’s logic sweeps far more broadly and would encompass many territorial officials, including those currently subject to popular election.

The First Circuit held that the members of the Oversight Board are “Officers of the United States” subject to the Appointments Clause of Article II, Section 2 of the U.S. Constitution. That status, the Court determined, stems from the fact that the members of the Oversight Board held continuing offices and exercised “significant authority” pursuant to the laws of the United States. Aurelius Investment, LLC, et al. v. Commonwealth of Puerto Rico, et al., 915 F.3d 838 at 856-57 (1st Cir. 2019). In making that determination, however, the Court failed to distinguish between members of the Oversight Board and many other territorial office-holders whose selection or appointment does not comport with the requirements of the Appointments Clause. This omission places territorial self-governance in doubt.

Even if one can distinguish between members of the Oversight Board and other members of the Puerto Rican government because of the island’s Commonwealth status, the First Circuit’s test also implicates the home rule of Guam and the United States Virgin Islands, which cannot claim the protection of that status for themselves. In light of these implications, the Court should carefully consider the results of the First Circuit’s reasoning so as not to strip U.S. territories of their longstanding self-governance.

The full brief can be found here.