Foreign affairs

• Pages: 10-11

10 Volume 18, January–March 2012 international law update

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

Constitution, formulated policies with profound

implications for national security. One may agree

or not agree with those policies. One may debate

whether they were or were not the most eective

counterterrorism strategy. Nevertheless, the forum

for such debates is not the civil cause of action

pressed in the case at bar. e fact that Padilla

disagrees with policies allegedly formulated or

actions allegedly taken does not entitle him to

demand the blunt deterrent of money damages

under Bivens to promote a dierent outcome. Being

judicial requires that we be judicious, and adherence

to our constitutional role in this area requires that

we await armative action by Congress. Put simply,

creating a cause of action here is more appropriately

for those who write the laws, rather than for those

who interpret them.” [Slip op. 18-19]

Next, the Court discusses the second factor

causing hesitation in extending the Bivens remedy

to Padilla, which is the departure from core areas

of judicial competence. is factor is similar to the

dangers of intruding on the constitutional powers of

another branch of government.

“e factors counseling hesitation are many.

We have canvassed them in some detail, but only

to make a limited point: not that such litigation is

categorically forbidden by the Constitution, but

that courts should not proceed down this highly

problematic road in the absence of armative action

by Congress. If Congress were to create a damages

remedy here, we would trust that the legislative

process gave due consideration to the broader policy

implications that we as judges are neither authorized

nor well-positioned to balance on our own. …”

“Before recognizing a Bivens action, courts must

not only consider special factors that would counsel

hesitation, but also whether any alternative, existing

process for protecting the interest amounts to a

convincing reason for the Judicial Branch to refrain

from providing a new and freestanding remedy in

damages. …In such circumstances, we cannot regard

the legislative failure to provide Padilla with the

monetary damages he seeks from each Defendant

as an invitation to design some preferred remedial

regime of our own.” [Slip op. 24-25]

: Lebron v. Rumsfeld, 670 F.3d 540 (4th

Cir. 2012).

FOREIgN AFFAIRS

T N C   

 ’ 

     -

 S .   C

C  C P  

   

     

 A G

In 2000, the California legislature enacted

Section 354.4 of the California Code of Civil

Procedure, empowering California courts to

adjudicate insurance claims brought by Armenian

Genocide victims arising out of policies issued or in

eect between 1875 and 1923. e law also expands

the statute of limitations for such claims.

In 2003, the Plaintis, including Vazken

Movsesian, led a class action suit in the U.S.

District Court for the Central District of California

against Victoria Versicherung AG (Victoria) and

Ergo Versicherungsgruppe AG (Ergo), and their

parent company Munchener Ruckversicherungs-

Gesellschaft Aktiengesellschaft AG (Munich Re).

e Plaintis are of Armenian descent who claim

benets under the Defendants’ life insurance

policies issued or in eect during the Ottoman

Empire between 1875 and 1923.

Relying on Section 354.4, the Plaintis claimed

breach of contract, breach of covenant of good

faith and fair dealing, unjust enrichment, and

constructive trust. Defendant Munich Re moved to

dismiss all of the claims; it contended that § 354.4 is

unconstitutional because the federal constitutional

powers over foreign aairs preempts that eld. e

district court denied the motion to dismiss all claims

except for the unjust enrichment and constructive

trust claims.

Munich Re then moved to certify the district

court’s order for interlocutory appeal to the U.S.

Court of Appeals for the Ninth Circuit. e district

court granted the motion and stayed the case.

Munich Re timely petitioned the Ninth Circuit for

permission to pursue an interlocutory appeal, which

the Court granted. A three-judge panel of the Ninth

Circuit then armed the district court’s rulings.