In the case of Hernandez v. Mesa, by a vote of 5-4, the judgment of the U.S. Court of Appeals for the Fifth Circuit was affirmed. Per Justice Alito's opinion for the Court: "We are asked in this case to extend Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and create a damages remedy for a cross-border shooting. As we have made clear in many prior cases, however, the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new 'context,' and a claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.... In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern––respect for the separation of powers." Justice Alito's majority opinion was joined by the Chief Justice and Justices Thomas, Gorsuch, and Kavanaugh. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. Peter Thomson joins us to discuss this decision and its implications.
Peter M. Thomson, Member, Stone Pigman Walther Wittmann L.L.C.
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Criminal Law & Procedure Practice Group, was recorded on Friday, March 6, 2020, during a live teleforum conference call held exclusively for Federalist Society members.
Micah Wallen: Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is a Courthouse Steps Decision Teleforum on Hernandez v. Mesa. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today, we are fortunate to have with us Peter Thompson, who is a member of the Stone Pigman law firm in Louisiana. After our speaker gives his opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. Peter, the floor is yours.
Peter Thompson: Well, thank you, Micah, for having me on. I think this case is important for a number of reasons, the primary reason being that the Court signaled in the opinion in, I think, the strongest of terms that it’s going to respect the separation of powers principles, not only for purposes of the Hernandez case, but I think well into the future. In fact, the Court confirmed numerous times throughout the opinion that it’s going to abide and be guided by the separation of powers principles and not supplant its will for the authorities and constitutional responsibilities of not only Congress but also the Executive Branch, both of which were discussed at length in the opinion.
Before going on though, very briefly, for those of you that are new to the case, and I know probably most of you all are aware of the facts, but for those that are new, I’ll just briefly address the facts before moving on to the opinion, and more importantly, why I think the case is important and some of the implications I see down the road for the case. But the case involves a cross-border shooting. It occurred in a very large, walkable culvert near El Paso, Texas, and Ciudad Juarez in Mexico. The U.S.–Mexican border there runs directly down the middle of this culvert. It’s where the Rio Grande River at one time flowed.
Sergio Hernandez, who was a 15-year-old Mexican national, was allegedly throwing rocks from one side of the border at a Customs and Border Protection agent by the name of Jesus Mesa, who fired his weapon at Hernandez, striking him in the head, and unfortunately killing him. When agent Mesa fired his gun, he was standing on the U.S. side of the border, and when Hernandez was struck by the bullet, he was standing on the Mexican side.
Now, the Department of Justice investigated the shooting. The concluded that Agent Mesa had not done any wrong, that he violated no law or policy or regulation. In policeman’s parlance — and I hate to use this term because of the unfortunate incident — but in policeman talk, it was a good shooting. But because Hernandez’s claim in district court was initially rejected on a motion to dismiss, the Supreme Court was required to accept as true the plaintiff’s version of facts in reviewing the case, which were completely opposite to the agent’s version of facts. And Hernandez’s facts were simply that — and I’m summarizing them — but basically that he and some friends were playing. They would run up and down and touch the U.S. side of the border of the fence, run back down, and the agent just simply shot him, essentially, in cold blood.
The question before the Supreme Court was whether it should recognize a civil damages claim under Bivens, which held that federal agents could be held liable in damages for violations of the Fourth Amendment, which created and implied a right of action out of the Fourth Amendment. But here, the Court was faced specifically with deciding whether the circumstances of this case in Hernandez were similar to Bivens, or whether this case presented circumstances that were different from Bivens, in which case the Court would have to decide based on factors, which I’ll discuss in a moment, but have to decide whether to extend Bivens into this new area or potential new area presented by Hernandez.
So here, the Court held that Bivens actions do not extend to claims on cross-border shootings, and that the facts here are different, and that they are different in a very meaningful way, which is a term of art that actually was discussed in the Abbasi decision. I’ll get to that in a moment as well. But the facts here in this case were different in a meaningful way from prior Bivens decisions.
The opinion was a 5-4 decision. It was split, in my view, on -- or clearly, I guess I should say, on ideological lines between conservatives and liberals, between those favoring judicial restraint versus those apparently favoring judicial activism, in a sense, of willing to encroach more on separation of powers, although I’m not sure that the dissenting judges in this case would exactly see it that way. As you would expect, the majority consisted of Justices Alito, Thomas, Roberts, Gorsuch, and Kavanaugh. Justice Alito wrote the opinion. Justice Thomas, joined by Justice Gorsuch, wrote a concurring opinion. The dissent was written by Justice Ginsburg, joined, of course, by Justices Breyers, Sotomayor, and Kagan.
So turning to the opinion itself, I would first like to, I think, summarize it, then flesh out some more of the particular reasoning that Justice Alito laid out in the opinion. Justice Alito, after tracing Bivens’s originations and the implied right of action created in the Bivens case with regard to the Fourth Amendment, in tracing subsequent extensions of Bivens claims — Bivens was a Fourth Amendment — in tracing subsequent claims related to the Fifth and Eighth Amendments, the Court, through Justice Alito, stressed that since the earlier cases in which Bivens was extended, since that time extending Bivens further, or -- I misspoke. I’m sorry. Since that time, the Court has disfavored judicial activity, since Bivens and since there were two cases following Bivens which did extend Bivens. But since that time, any further extensions have been disfavored pointedly by the Court, although the Court recognized it at times as well that it had expressed doubt that it can create or recognize causes of action that aren’t expressly authorized by Congress or by the terms of the Constitution.
And in deciding whether to pursue the disfavored judicial activity of extending Bivens into areas, the Court in Hernandez discussed the two-step inquiry that must be taken in every Bivens case. And the first step which it looked at, of course, is to determine if the claim arises in a new context or with a new category of defendants. If it doesn’t, then most likely Bivens is applied and the lawsuit is allowed to go forward. But if the claim does arise in new context, then the Court is obliged to determine if there are special factors which counsel hesitation with regard to extending Bivens into that new context.
Here, the Court found that Hernandez’s claim did, in fact, arise in a new context, notwithstanding the fact that the claim or the claims were based on the Fourth and Fifth Amendments, as prior cases in which Bivens had been applied. According to the Court, there is a new context here in the Hernandez case because it involves a cross-border shooting which the Court said was significantly different than prior Bivens cases. The Court also said that this case involved a new context because it involves a very serious risk of intruding into the functions of not only Congress, but clearly into the functions of the Executive Branch, which would be a violation of separation of powers.
In applying the second step of the analysis, which focuses on special factors which counsel hesitation in extending Bivens, the Court found multiple factors which gave them pause. So first, the majority found that the case implicates foreign relations as well as the Executive Branch’s foreign policy responsibilities. The Court stressed that it’s not for the Court to intrude on foreign diplomacy, which is the responsibility of the President.
The Court also found that the conduct of border patrol agents on the border has a very strong connection to national security interests of this country. And clearly, the Court did not want to undermine and stated that extending Bivens would undermine border security through unwarranted judicial action if they extended Bivens. The Court cited an example. It was a prior Supreme Court case called Chapman in which the Supreme Court at that time refused to extend Bivens where doing so might interfere with the system of military discipline.
So Justice Alito also emphasized that Congress has been entirely silent on these kinds of injuries. And he took the position that Congress has repeatedly, in fact, over many years refused to authorize damages against federal officers for injuries inflicted outside of U.S. borders. And he cited several examples, including 42 U.S.C. 1983 which is available only to U.S. citizens or others within U.S. jurisdiction. He also cited the Federal Tort Claims Act, which bars claims arising in their own countries.
And finally, the majority recognized the concern for respecting separation of powers as a special factor. And from my reading of the case, the Court found this to be absolutely the most important factor in the Hernandez case. Justice Alito said in no uncertain terms -- I think he said that the most important question in the case is whether Congress or the courts should create a damages remedy. And he concluded that in this case under the facts presented in Hernandez, it is clearly Congress’s responsibility. The failure of Congress to legislate damages remedies or any damage remedy does not at all compel the Court to step into their shoes or into Congress’s shoes.
So speaking to its aversion to create new Bivens actions, the Court actually delved quite a bit into the historical context of Bivens. After that decision, the Court explained two Bivens cases that followed on the heels sometime after Bivens. And the two cases were Davis and the other one was Carlson, and those cases extended Bivens to Fifth Amendment and Eighth Amendment claims. But as the Court initially pointed out in its opinion in Hernandez, those cases and Bivens were decided in an era where the Court was inferring causes of action primarily based on the Constitution itself.
So Justice Alito explained that in the wake of those decisions, the Court became much more persuaded by the principle of separation of powers between the branches. And he explained that where the Court recognizes an implied cause of action, in those circumstances, it absolutely risks supplanting its will with those of Congress.
So the Court, through Justice Alito, also traced to some extent the history surrounding the Court’s previous creation of causes of action at common law, where common law courts had some lawmaking authority. But Justice Alito pointed out as well that in 1938, the Erie decision held that there is no federal general common law and that the courts therefore just can’t fashion new claims as they had done before. So after tracing other cases indicating or suggesting a reluctance to create new causes of action subsequent to the Bivens era or progeny era, so to speak, the Court reiterated Abbasi’s position that Bivens is clearly disfavored judicial activity, recognizing that for approximately almost 40 years, the Court has rebuffed time and time again requests to add new claims under Bivens.
Justice Thomas, in his concurring opinion with Justice Gorsuch, went even further than the other three conservative justices in the majority opinion. Justice Thomas took the stronger position that the time has actually come to consider discarding Bivens altogether. He actually called to overrule Bivens. And I think it rested on four principal reasons. The first that he relied on was the fact that the Court’s creation of implied causes of action in the statutory context had already been abandoned or has already been abandoned by the Court. Secondly, he stressed that the Court has refused to extend Bivens for almost 40 years, as I mentioned, and that the Court has only kept Bivens alive within defined parameters, primarily of Bivens in the Fourth Amendment as well as Davis and Carlson, which both were claims under the Fifth and Eighth Amendments, respectively. I believe Davis was under the Fifth and Carlson was decided under the Eighth.
But Justice Thomas also argued that the separation of powers must be respected, that Bivens actions usurp congressional authority and responsibility. And that theme was not only strong throughout his concurring opinion, but it was also a strong theme through the majority’s as well. And finally, Justice Thomas stressed that the Court’s position recently reiterated in the Abbasi decision again stressed the fact that Bivens actions constitute a disfavored judicial activity.
So turning to the implications and what I think are some of the important aspects of the case, think there are a number of reasons. And the one that stands out to me the most is the Court’s embracing of separation of powers and its position that it’s Congress’s duty to create damages remedies, and also signaling, I think, that it’s going to oppose and judicial activism in the future which would supplant the will of the Court for Congress and the Executive Branch. And throughout the opinion, the majority cited numerous times the importance of separation of powers and that the Court must be respectful for the authorities of the other branches.
So I think the Court has kind of drawn a line in the sand here, or at least putting everybody on notice, at least the majority, as to the Court saying that they’re going to be conservative in their approach to Bivens claims. And I think that they’re saying more than that. I think they’re saying they’re going to take a strong conservative approach in the future in any matters that might separate or threaten separation of powers.
And to drill down maybe a little bit more at the risk of repeating myself a bit, the Court said that if they created a judicial remedy here in Hernandez that they would clearly be interfering with Congress. And not only Congress, but they would be interfering with the President’s responsibility for national security and foreign relations. And the Court said it’s simply not suited to weigh those costs and benefits. Clearly, I think that’s what the majority was saying. And they were saying that the remedy is not to extend Bivens but for Congress and/or the Executive to act and not the Court.
One thing the Court was not saying was that Hernandez or someone similarly situated should have no remedy. It was saying that the remedy must be given by Congress or the President and not the Court. So actually, in preparing for the teleforum, I read a couple of articles just to see what others were saying, and some framed this case as holding that federal agents can now just shoot foreign nationals with impunity or shoot Mexican nationals with impunity at the border without any legal recourse. But from my read of this case, that is not what the Court was saying at all. And what they were saying is that this case is all about separation of powers and the important thing whether courts can legislate remedies in situations where Congress has clearly chosen not to do so. Likewise, I think the decision is a strong signal the Court’s giving that it’s going to support judicial restraint in the future and disfavor any form of judicial activism in the form of legislating or attempting to legislate from the bench.
One author I remember reading argued that the decision was laying the groundwork, actually, for Supreme Court opinions that would eliminate all Bivens protections against acts of federal officers who violate the Constitution. But not withstanding Justice Thomas’s concurring opinion, which was arguing just that, I seriously doubt that based on this opinion that Bivens protections will be eliminated altogether primarily because three conservative justices chose not to go that far. So I do think Bivens is perfectly safe for the foreseeable future. And Bivens actions can still be brought where the circumstances do not present a new context for the Court.
The decision, I think, also is important for national security and border operations reasons to some extent, and clearly notwithstanding whether the shooting here of Mr. Hernandez was appropriate or not, I think the decision sends a signal to all those working border security that they can operate freely within legal bounds without the fear of lawsuits by foreign nationals to haul them into U.S. courts when they’re attempting to prevent these individuals from entering the country illegally. Obviously, if an agent were to commit a serious wrong, there would be, hopefully, serious repercussions from the agency for which he or she works. Where there is a serious violation of someone’s rights, the U.S. government might choose to act differently through diplomacy or through extradition than how it decided to act in the Hernandez matter. Or in those instances, an agent who violates federal criminal law can, of course, be prosecuted.
The decision also, I think, with all the press surrounding it, potentially might lead to some extra pressure or push on Congress to create or at least discuss creation of some form of legislation that might address similar cross-border situations. The case could also lead to discussions possibly with the Executive Branch to fashion something that would address similar cases in the future beyond the current treaties that we have internationally and any specific treaties with Mexico. But interestingly, the Court left unaddressed border cases, I think, where a victim of an alleged unconstitutional violation by an agent is harmed while the victim is standing on U.S. soil, I don’t think the current decision by the Court requires those cases to forgo Bivens actions, not at all.
So finally, and probably most obvious, the Court’s decision clearly disfavors Bivens actions in the future in due context. And therefore, trying to prosecute Bivens claims beyond the parameters set in Bivens or Davis or Carlson will remain, I think, a very, very daunting task for plaintiffs in the future. I think I’ll end there. If anybody would like me to summarize or address the dissent, I’d be happy to do that. But either way, thank you for the opportunity to talk today to summarize the case and some of my thoughts on its implications.
Micah Wallen: Thank you, Peter. I’m not seeing anyone pop up right away. Would you like to go ahead and go into that dissent? And I’ll hop back on the line if we get a question.
Peter Thompson: Yeah. I think I mentioned it was written by Justice Ginsburg joined by Breyer, Kagan, and Sotomayor. And the way that Justice Ginsburg framed the issue in the dissent was basically asking if Bivens is available to a noncitizen where an agent acts within the U.S., but the impact of that act is suffered outside the U.S. And she answered that as a rhetorical question with a resounding yes.
The dissent’s primary arguments supporting extending Bivens were several. First was they argued that Hernandez -- that the case here is not in a new context, that this is simply an act by a rogue agent, and that is not a new context, and that the claim here is similar to the underlying claim in Bivens, which is a Fourth Amendment claim. Justice Ginsburg also argued that the fact that Hernandez has no alternative legal remedies should also be considered, and the dissenting’s position as to special factors was completely opposite, just night and day to the analysis given by the majority. So Justice Ginsburg found or argued that no special factors exist here at all that counsel hesitation. She said that there are no foreign policy issues here that are unique. There’s no national security issues here that are unique, and nothing here that they would do, or at least extending Bivens would not undermine border security at all.
And I think that the underlying theme for all those positions in denying the existence of special factors is their argument that what difference does it make whether the bullet landed a few feet on one side of the border or another because the dissent’s position, and it was made clear, actually, in the questions during argument, particularly by Justice Breyer, that if Hernandez had been shot one foot within or on the U.S. side of the border, that all of these factors would still be at issue, that it’s still occurring in this special culvert area, would still raise the same foreign policy issues, it would still raise national security border protection issues, and so there really is not clear distinction for special factors as the majority argued.
Justice Ginsburg also said that the concerns of the majority about the conduct being abroad or misplaced, and she argued that the conduct actually occurred within the U.S., which is where the pistol was fired. And she said that Hernandez’s location, I think her words were, “should not matter one whit.” Justice Ginsburg also indicated that by not extending Bivens, that that could actually harm U.S.–Mexico foreign relations. So I will turn it back over to you, Micah.
Micah Wallen: All right, Peter. Well, no other questions came through, no doubt to the comprehensive complete analysis that you gave us. So unless you have any other further or any closing remarks, I can go ahead and close us out early today.
Peter Thompson: No, I do not if there’s no questions. Thank you very much for the opportunity to talk today.
Micah Wallen: All right. And on behalf of The Federalist Society, I would like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at firstname.lastname@example.org. Thank you all for joining us. We are adjourned.
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