foreign policy

Issues

This case asks the Supreme Court to determine whether damages claims filed by private individuals against federal officers merit a judicial tort remedy, absent any other legal remedies. The parents of Sergio Adrian Hernandez Guereca—who was fatally shot on Mexican soil by a U.S. officer on U.S. soil—sued the U.S. officer, other unknown federal employees, and the United States. They argue that under Bivens, their damages claims should proceed despite the lack of statutory provisions because the essence of their claims is the same as Bivens and because no other legal remedy is available. Jesus Mesa, Jr., the Border Patrol agent who shot and killed Sergio, contends that the parents’ claims should be dismissed because the claims fall outside of Bivens given the “new context” they present and the “special factors” that warrant the Court’s caution in recognizing a Bivens action in this case. The outcome of this case has heavy implications for national security, separation of powers, and accountability of agents employing deadly force in foreign territories.

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 This case asks the Supreme Court to decide whether the common-law doctrine of international comity provides federal courts with the discretion to dismiss claims under the Foreign Sovereign Immunities Act (“FSIA”). Respondent the Republic of Hungary argues that the FSIA must be construed in light of international comity doctrine, and that the federal court should defer to Hungary as Hungary’s interests in hearing this case outweigh those of the United States. Petitioners Rosalie Simon and other Hungarian Holocaust survivors argue that the FSIA has displaced common law and that federal courts should exercise jurisdiction in cases such as this one, where a sovereign state has failed to provide an adequate alternate forum. The outcome of this case will have implications on foreign policy, the extraterritorial reach of U.S. law, and the remedies available to the victims of Holocaust.

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The U.S. Embassy refused to record the place of birth of Petitioner Menachem Zivotofsky as “Jerusalem, Israel” in accordance with U.S. foreign policy to refrain from expressing an official view on whether Jerusalem is part of Israel. His parents filed suit on his behalf, demanding that the State Department comply with Section 214 of the Foreign Relations Authorization Act, which requires the State Department to record the place of birth of a U.S. citizen born in Jerusalem as Israel, if the child’s legal guardians so request. The district court held that the judiciary has no authority to order the executive branch to change its foreign policy under the political question doctrine; the United States Court of Appeals for the District of Columbia Circuit affirmed this holding. Petitioner Zivotofsky (through his parents) argues that the political question doctrine does not apply because the case involves a question of statutory interpretation. Secretary of State Clinton contends that Section 214 is unconstitutional because Congress has no authority to recognize foreign sovereigns. The Supreme Court’s decision in this case will clarify the political question doctrine, and may shed light on the issue of separation of powers among the judicial, legislative, and executive branches.

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