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Hernandez v. Mesa

United States Court of Appeals, Fifth Circuit

March 20, 2018

JESUS C. HERNANDEZ, Individually and as the surviving father of Sergio Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio Adrian Hernandez Guereca; MARIA GUADALUPE GUERECA BENTACOUR, Individually and as the surviving mother of Sergio Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio Adrian Hernandez, Plaintiffs - Appellants
JESUS MESA, JR., Defendant-Appellee

         Appeal from the United States District Court for the Western District of Texas



          EDITH H. JONES, Circuit Judge, joined by STEWART, Chief Judge, JOLLY, DAVIS, SMITH, DENNIS, [**] CLEMENT, OWEN, ELROD, SOUTHWICK, HAYNES, [***] HIGGINSON, and COSTA, Circuit Judges.

         This appeal returned to the court en banc following remand from the United States Supreme Court. Prompted by the High Court, we have carefully considered a question antecedent to the merits of the Hernandez family's claims against United States Customs & Border Patrol Agent Mesa: whether federal courts have the authority to craft an implied damages action for alleged constitutional violations in this case. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971) [hereinafter Bivens]. We hold that this is not a garden variety excessive force case against a federal law enforcement officer. The transnational aspect of the facts presents a "new context" under Bivens, and numerous "special factors" counsel against federal courts' interference with the Executive and Legislative branches of the federal government.


         Because the plaintiffs' claims were dismissed on the pleadings, the alleged facts underlying this tragic event are taken as true. Fed.R.Civ.P. 12(b)(6); Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013). Sergio Hernandez was a 15-year-old Mexican citizen without family in, or other ties to, the United States. On June 7, 2010, while at play, he had taken a position on the Mexican side of a culvert that marks the boundary between Ciudad Juarez, Mexico, and El Paso, Texas. The FBI reported that Agent Mesa was engaged in his law enforcement duties when a group of young men began throwing rocks at him from the Mexican side of the border. From United States soil, the agent fired several shots toward the assailants. Hernandez was fatally wounded.

         Hernandez's parents alleged numerous claims in a federal lawsuit against Agent Mesa, other Border Patrol officials, several federal agencies, and the United States government. The federal district court dismissed all claims, but was reversed in part by a divided panel of this court. Hernandez v. United States, 757 F.3d 249, 255 (5th Cir. 2014). The panel decision allowed only a Bivens claim, predicated on Fifth Amendment substantive due process, to proceed against Agent Mesa alone. Id. at 277. This court elected to rehear the appeal en banc. Without ruling on the cognizability of a Bivens claim in the first instance, [1] we concluded unanimously that the plaintiffs' claim under the Fourth Amendment failed on the merits and that Agent Mesa was shielded by qualified immunity from any claim under the Fifth Amendment. We rejected the plaintiffs' remaining claims. See Hernandez v. Mesa, 785 F.3d 117, 119 (5th Cir. 2015) (en banc).

         The Supreme Court granted certioriari and heard this case in conjunction with Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). In Abbasi, the Court reversed the Second Circuit and refused to imply a Bivens claim against policymaking officials involved in terror suspect detentions following the 9/11 attacks. The Court, however, remanded for reconsideration by the appeals court whether a Bivens claim might still be maintained against a prison warden.

         The Court's decision in this case tagged onto Abbasi by rejecting this court's approach and ordering a remand for us to consider the propriety of allowing Bivens claims to proceed on behalf of the Hernandez family in light of Abbasi's analysis.


         The plaintiffs assert that Agent Mesa used deadly force without justification against Sergio Hernandez, violating the Fourth and Fifth Amendments, where the fatal shot was fired across the international border. No federal statute authorizes a damages action by a foreign citizen injured on foreign soil by a federal law enforcement officer under these circumstances. Thus, plaintiffs' recovery of damages is possible only if the federal courts approve a Bivens implied cause of action. Abbasi instructs us to determine initially whether these circumstances present a "new context" for Bivens purposes, and if so, whether "special factors" counsel against implying a damages claim against an individual federal officer. To make these determinations, we review Abbasi's pertinent discussion about "Bivens and the ensuing cases in [the Supreme Court] defining the reach and the limits of that precedent." Abbasi, 137 S.Ct. at 1854.

         In Abbasi, the Court begins by explaining that when Congress passed what is now 42 U.S.C. § 1983 in 1871, it enacted no comparable law authorizing damage suits in federal court to remedy constitutional violations by federal government agents. In 1971, the Bivens decision broke new ground by authorizing such a suit for Fourth Amendment violations by federal law enforcement officers who handcuffed and arrested an individual in his own home without probable cause. Within a decade, the Court followed up by allowing a Bivens action for employment discrimination, violating equal protection under the Fifth Amendment, against a Congressman.[2] The Court soon after approved a Bivens claim for constitutionally inadequate inmate medical care, violating the Eighth Amendment, against federal jailers.[3]According to the Court in Abbasi, these three cases coincided with the "ancien regime"[4] in which "the Court followed a different approach to recognizing implied causes of action than it follows now." Abbasi, 137 S.Ct. at 1855.

         The "ancien regime" was toppled step by step as the Court, starting in the late 1970s, retreated from judicially implied causes of action[5] and cautioned that where Congress "intends private litigants to have a cause of action, " the "far better course" is for Congress to confer that remedy explicitly. Cannon v. Univ. of Chi., 441 U.S. 677, 717, 99 S.Ct. 1946, 1968 (1979). Abbasi acknowledges that the Constitution lacks as firm a basis as congressional enactments for implying causes of action; but the "central" concern in each instance arises from separation-of-powers principles. Abbasi, 137 S.Ct. at 1857. Consequently, the current approach renders implied Bivens claims a "disfavored"[6] remedy. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S.Ct. 1937, 1948 (2009)). The Court then lists the many subsequent cases that declined to extend Bivens under varying circumstances and proffered constitutional violations. Id.

          Abbasi goes on to reiterate with an exacting description the two-part analysis for implying Bivens claims. We turn to the two inquiries by comparing Abbasi's separation-of-powers considerations and its facts to the present case.

         A. New Context

         The plaintiffs assert that because the allegedly unprovoked shooting of a civilian by a federal police officer is a prototypical excessive force claim, their case presents no "new context" under Bivens. This court, including our colleagues in dissent, disagrees.[7] The fact that Bivens derived from an unconstitutional search and seizure claim is not determinative. The detainees in Abbasi asserted claims for, inter alia, strip searches under both the Fourth and Fifth Amendments, but the Supreme Court found a "new context" despite similarities between "the right and the mechanism of injury" involved in previous successful Bivens claims. Abbasi, 137 S.Ct. at 1859. As Abbasi points out, the Malesko case rejected a "new" Bivens claim under the Eighth Amendment, [8] whereas an Eighth Amendment Bivens claim was held cognizable in Carlson; and Chappell rejected a Bivens employment discrimination claim in the military, [9] although such a claim was allowed to proceed in Davis v. Passman. The proper inquiry is whether "the case is different in a meaningful way" from prior Bivens cases. Abbasi, 137 S.Ct. at 1859.

         Among the non-exclusive examples of such "meaningful" differences, the Court points to the constitutional right at issue, the extent of judicial guidance as to how an officer should respond, and the risk of the judiciary's disruptive intrusion into the functioning of the federal government's co-equal branches. Abbasi, 137 S.Ct. at 1860-61. The Court found it an easy conclusion that there were meaningful differences between prior Bivens claims and claims alleged in Abbasi for unconstitutional "confinement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil." Id. at 1860. Even more significant, the Court decided that claims against the prison warden for "compelling" allegations of detainee abuse and prison regulation violations also arose in a "new context" under Bivens. Id. at 1864. Despite close parallels between claims alleged against the warden and Carlson, the Court explained that "even a modest extension [of Bivens] is still an extension, " id., and the Court remanded for additional consideration of the "special factors."

         Pursuant to Abbasi, the cross-border shooting at issue here must present a "new context" for a Bivens claim. Because Hernandez was a Mexican citizen with no ties to this country, and his death occurred on Mexican soil, the very existence of any "constitutional" right benefitting him raises novel and disputed issues. There has been no direct judicial guidance concerning the extraterritorial scope of the Constitution and its potential application to foreign citizens on foreign soil.[10] To date, the Supreme Court has refused to extend the protection of the Fourth Amendment to a foreign citizen residing in the United States against American law enforcement agents' search of his premises in Mexico. United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056 (1990).[11] Language in Verdugo's majority opinion strongly suggests that the Fourth Amendment does not apply to American officers' actions outside this country's borders. See Verdugo-Urquidez, 494 U.S. at 274-75, 110 S.Ct. at 1066. In Hernandez, the Supreme Court itself described the plaintiffs' Fourth Amendment claims as raising "sensitive" issues. Hernandez v. Mesa, 137 S.Ct. 2003, 2007 (2017).

         Likewise, the plaintiffs can prevail on a substantive due process Fifth Amendment claim only if federal courts accept two novel theories. The first would allow a Bivens action to proceed based upon a Fifth Amendment excessive force claim simply because Verdugo might prevent the assertion of a comparable Fourth Amendment claim. But cf. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871 (1989) ("[A]ll claims that law enforcement officers have used excessive force . . . in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard, rather than under a 'substantive due process' approach."). The second theory would require the extension of the Boumediene decision, [12] both beyond its explicit constitutional basis, Art. I, § 9, cl. 2, the Habeas Corpus Suspension Clause, and beyond the United States government's de facto control of the territory surrounding the Guantanamo Bay detention facility. See Boumediene, 553 U.S. at 771, 128 S.Ct. at 2262 ("The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government.") (emphasis added). Moreover, even nine years later, no federal circuit court has extended the holding of Boumediene either substantively to other constitutional provisions or geographically to locales where the United States has neither de facto nor de jure control. Indeed, the courts have unanimously rejected such extensions.[13]

         The plaintiffs assert that because this is just a case in which one rogue law enforcement officer engaged in misconduct on the operational level, it poses no "new context" for Bivens purposes. On the contrary, their unprecedented claims embody not merely a "modest extension"-which Abbasi describes as a "new" Bivens context-but a virtual repudiation of the Court's holding. Abbasi is grounded in the conclusion that Bivens claims are now a distinctly "disfavored" remedy and are subject to strict limitations arising from the constitutional imperative of the separation of powers. The newness of this "new context" should alone require dismissal of the plaintiffs' damage claims. Nevertheless, we turn next to the "special factors" analysis assuming arguendo that some type of constitutional claims could be conjured here.

         B. Special Factors

         The plaintiffs argue that this case involves no "special factors"-no reasons the court should hesitate before extending Bivens. However remarkable this position may seem, it is unremarkable that the plaintiffs hold it. Indeed, they must. The presence of "special factors" precludes a Bivens extension. Given Abbasi's elucidation of the "special factors" inquiry, there is more than enough reason for this court to stay its hand and deny the extraordinary remedy that the plaintiffs seek.

         Abbasi clarifies the concept of "special factors" by explicitly focusing the inquiry on maintaining the separation of powers: "separation-of-powers principles are or should be central to the analysis." Abbasi, 137 S.Ct. at 1857. Before Abbasi, the Court had instructed lower courts to perform "the kind of remedial determination that is appropriate for a common-law tribunal." See, e.g., Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 2598 (2007) (emphasis added) (quoting Bush v. Lucas, 462 U.S. 367, 378, 103 S.Ct. 2404, 2411 (1983)). Underscoring the Court's steady retreat from the "ancien regime" discussed above, that language appears nowhere in Abbasi. Instead, Abbasi instructs courts to "concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed." Abbasi, 137 S.Ct. at 1857-58. In light of this guidance, the question for this court is not whether this case is distinguishable from Abbasi itself-it certainly is-but whether "there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy." Id. at 1858. If such reasons exist, "the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III." Id.

         Applying Abbasi's separation-of-powers analysis reveals numerous "special factors" at issue in this case. To begin with, this extension of Bivens threatens the political branches' supervision of national security. "The Supreme Court has never implied a Bivens remedy in a case involving the military, national security, or intelligence." Doe v. Rumsfeld, 683 F.3d 390, 394 (D.C. Cir. 2012). In Abbasi, the Court stressed that "[n]ational-security policy is the prerogative of the Congress and the President." Abbasi, 137 S.Ct. at 1861. The plaintiffs note the Court's warning that "national security" should not "become a talisman used to ward off inconvenient claims." Id. at 1862. But the Court stated that "[t]his danger of abuse" is particularly relevant in "domestic cases." See id. (citations omitted). Of course, the defining characteristic of this case is that it is not domestic. National-security concerns are hardly "talismanic" where, as here, border security is at issue. See, e.g., United States v. Delgado-Garcia, 374 F.3d 1337, 1345 (D.C. Cir. 2004) ("[T]his country's border-control policies are of crucial importance to the national security and foreign policy of the United States.").

         In particular, the threat of Bivens liability could undermine the Border Patrol's ability to perform duties essential to national security. Congress has expressly charged the Border Patrol with "deter[ring] and prevent[ing] the illegal entry of terrorists, terrorist weapons, persons, and contraband." 6 U.S.C. § 211(e)(3)(B). Although members of the Border Patrol like Agent Mesa may conduct activities analogous to domestic law enforcement, this case involved shots fired across the border within the scope of Agent Mesa's employment.[14] In a similar context-airport security-the Third Circuit recently denied a Bivens remedy for a TSA agent's alleged constitutional violations. Vanderklok v. United States, 868 F.3d 189, 207-209 (3d Cir. 2017). Relying on Abbasi, the Third Circuit's analysis is instructive:

[The plaintiff] asks us to imply a Bivens action for damages against a TSA agent. TSA employees [ ] are tasked with assisting in a critical aspect of national security-securing our nation's airports and air traffic. The threat of damages liability could indeed increase the probability that a TSA agent would hesitate in making split-second decisions about suspicious passengers. In light of Supreme Court precedent, past and very recent, that is surely a special factor that gives us pause.

Id. at 207. The same logic applies here.[15] Implying a private right of action for damages in this transnational context increases the likelihood that Border Patrol agents will "hesitate in making split second decisions." Considering the "systemwide" impact of this Bivens extension, there are "sound reasons to think Congress might doubt [its] efficacy." Abbasi, 137 S.Ct. at 1858.

         Extending Bivens in this context also risks interference with foreign affairs and diplomacy more generally. This case is hardly sui generis: the United States government is always responsible to foreign sovereigns when federal officials injure foreign citizens on foreign soil. These are often delicate diplomatic matters, and, as such, they "are rarely proper subjects for judicial intervention." Haig v. Agee, 453 U.S. 280, 292, 101 S.Ct. 2766, 2774 (1981). In fact, in 2014 the United States and Mexican governments established the joint Border Violence Prevention Council as a forum for addressing these sorts of issues.[16] The incident involving Agent Mesa initiated serious dialogue between the two sovereigns, with the United ...

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