Hernandez v. Mesa

WHO SHOULD DECIDE WHETHER TO PROVIDE FOR A BIVENS ACTION?

Petitioners Hernandez and Bentacour, Sergio’s parents (“Hernandez”) argue that it is within the Court’s authority to recognize damages claims against federal officers for violating the Constitution absent statutory provision. According to Hernandez, even before Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics—the first case in which the Supreme Court recognized tort claims against federal officers for constitutional violations—courts had traditionally recognized the right to damages when necessary to remedy constitutional harm resulting from a federal officer’s misconduct. Although federal officers may have certain defenses against these tort claims, Hernandez contends that the availability of such defenses does not limit the Court’s authority to recognize these claims.

Respondent Mesa counters that Congress should decide whether to allow tort suits against federal officers for violating the Constitution because this view is consistent with the Court’s current position. Claiming that Congress would have enacted statutes allowing damages claims if it had intended to do so, Mesa argues that Congress does not recognize Hernandez’s claims because it has not statutorily recognized a remedy for such a claim in the last eight years since Mesa shot and killed Sergio. Mesa also asserts that Congress should determine whether to allow damages for constitutional violations because Congress is more competent than courts in considering the economic, social, and governmental issues that would result from creating such a remedy.

“NEW CONTEXT” UNDER ABBASI​

Hernandez argues that the Fifth Circuit mistakenly found a “new context” and erroneously held that Bivens did not apply when the facts giving rise to Hernandez’s claims are similar to those of Bivens. Abbasi states that a case may differ from Bivens and thus preclude a Bivens action based on (1) the officer’s rank, (2) the constitutional rights at stake, (3) the officer’s conduct, (4) availability of instructions to guide officer’s conduct under the circumstances, (5) the officer’s source of authority, (6) risk of interference by the judiciary into the functioning of other government branches, or (7) special factors that are neither present nor addressed in Bivens. According to Hernandez, the Fifth Circuit was mistaken in finding a new context because his constitutional claims are essentially the same as those in Bivens—a federal officer used excessive force unconstitutionally, and as such his claims do not present a new context that would have precluded a Bivens action. In any event, Hernandez asserts that the Fifth Circuit mistook the significance of a finding of new context. Relying on Abbasi, Hernandez contends that a new context may be unfavorable, but it is not so dispositive that it would foreclose his claims entirely.

Mesa counters that Hernandez’s claims should be dismissed based on a new context because his claims involve an alien who was killed in Mexico by a federal officer who was shooting on U.S. soil, all of which are issues absent in Bivens. Mesa further argues that the foreign elements present in Hernandez’s claims make it questionable as to whether Hernandez is subject to constitutional protection in the first place. Mesa contends that the Supreme Court’s denial, in United States v. Verdugo-Urquidez, of a Fourth Amendment claim brought by an alien against federal officers whose conduct occurred outside of the United States suggests that the duty to protect Fourth Amendment rights does not apply to foreign conduct. Accordingly, Mesa argues that Hernandez’s Fourth Amendment claim should be dismissed because Sergio was killed in Mexico. Similarly, Mesa contends that Hernandez’s Fifth Amendment claim should be dismissed because courts have held that claims against law enforcement officers for using excessive force are subject to a Fourth Amendment analysis and not a substantive due process analysis under the Fifth Amendment. Additionally, Mesa argues that Hernandez’s claims should be denied because a Bivens action is allowed under the narrow circumstances as provided in Bivens. Therefore, Mesa concludes that a finding of new context must be fatal to Hernandez’s claims.

“SPECIAL FACTORS” UNDER ABBASI​

Hernandez asserts that the four “special factors” the Fifth Circuit identified do not warrant caution against recognizing a Bivens action here; the four “special factors” are (1) national security, (2) foreign affairs and diplomacy, (3) extraterritoriality, and (4) congressional inaction. First, Hernandez contends that treating national security as a special factor because his claims relate to border security would lead to an absurd result where a Bivens action can never be brought against any border patrol officers whose conduct necessarily relates to national security. Second, Hernandez argues that his claims do not invoke sensitive U.S. foreign policy concerns but rather the constitutionality of a single federal officer’s actions. Third, Hernandez argues that extraterritoriality alone does not justify denial of a Bivens action. Although it is generally presumed that statutes only apply to domestic conduct unless Congress clearly intended otherwise, Hernandez claims that the purpose of this presumption is not implicated in his claims. Fourth, Hernandez argues that congressional inaction should warrant caution only in cases where Congress has actively discussed or regulated so that the absence of statutory provision would suggest Congress’s refusal in regulating those cases. Claiming that Congress has not actively legislated cross-border shootings, Hernandez contends that the lack of statute providing for damages for his claim is not deliberate.

On the other hand, Mesa claims that special factors are present under Abbasi if threats to the separation-of-powers principle exist, in which case courts must deny a private cause of action absent statutory provisions to prevent judicial intrusion into the functioning of other governmental branches. First, Mesa argues that a special factor is present because the Court’s recognition of a Bivens action here would interfere with the Executive branch and the Legislative branch’s scrutiny of national security issues. According to Mesa, the Court has yet to recognize a Bivens action involving federal officers whose mandate involves protecting national security. In response to Hernandez’s claim that the Court counseled against using national security to fend off inconvenient claims, Mesa disputes that the instruction applies only in domestic cases, which excludes Hernandez’s case. Second, Mesa claims that recognition of a Bivens action here would risk interfering with the government’s administration of foreign policy. Third, Mesa argues that extraterritoriality is a special factor in Hernandez’s claims that necessitates a presumption against applying statutes to foreign conduct without clear congressional intent to the contrary. Acknowledging that this presumption governs statutory interpretation specifically, Mesa asserts that it could be instructive in determining whether a Bivens action should apply to foreign conduct. Fourth, Mesa argues that congressional inaction on issues implicated in Hernandez’s claims is intentional and should discourage the Court in recognizing a Bivens action here.

ABSENCE OF ALTERNATIVE LEGAL REMEDY

Hernandez contends that Bivens requires his claims to proceed based on the lack of alternative remedy. First, Hernandez asserts that the Westfall Act bars any tort claims arising under state law against federal officers who acted within their scope of employment. Therefore, Hernandez claims that he is precluded from seeking remedy that would otherwise be available under Texas tort law. Second, Hernandez asserts that the Westfall Act restricts the remedy to only those available under the FTCA, which requires domestic conduct. Moreover, Hernandez continues, he is precluded from seeking remedy under the FTCA because the officer’s shooting occurred in Mexico. Under these circumstances, Hernandez concludes that Bivens is his only chance at obtaining any remedy at all.

Mesa argues that the lack of an alternative remedy is not a basis for omitting the special factor analysis in this context. Mesa maintains that in cases where alternative remedy is absent, the special factor analysis is particularly important in determining whether to create a new cause of action. , in support of Mesa, argues that alternative remedy is available for two reasons. First, APA Watch contends that the FTCA does not preclude claims involving diversity jurisdiction for torts that occurred outside of the United States. Second, APA Watch continues, Hernandez may sue in Texas where the application of its conflict-of-law rules would result in Mexico’s tort law being applied to Hernandez’s diversity claims involving torts that occurred abroad.