Amicus Curiae Brief — Jesus C. Hernández, et al., Petitioners v. Jesus Mesa, Jr.
Supreme Court briefSep 30, 2019
Ask Donna
What actually matters in this document.
Text
No. 17-1678
In the Supreme Court of the United States
JESUS C. HERNÁNDEZ, ET AL., PETITIONERS
v.
JESUS MESA, JR.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
MORGAN L. RATNER
Assistant to the Solicitor
General
MARK B. STERN
KATHERINE TWOMEY ALLEN
THAIS-LYN TRAYER
MARY HAMPTON MASON
SIEGMUND F. FUCHS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Petitioners brought a civil action under Bivens v.
Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), seeking damages from
a U.S. Border Patrol agent who, while standing in the
United States, fatally shot a Mexican citizen who was in
Mexico. The question presented is whether the remedy
recognized in Bivens should be extended to the claim in
this case.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 8
Argument:
The judicially created Bivens remedy should not be
extended to aliens injured abroad ........................................ 10
A. For nearly 40 years, this Court has consistently
declined to extend Bivens to new contexts where
special factors counsel hesitation................................... 10
B. This case presents a new context for a Bivens
remedy .............................................................................. 13
C. Multiple special factors counsel hesitation
before extending a Bivens remedy to aliens
injured abroad ................................................................. 15
1. Claims by aliens injured abroad implicate
foreign affairs and national security ....................... 17
2. Congress’s consistent decisions not to provide
a judicial damages remedy to aliens injured
abroad confirm that a Bivens remedy is
inappropriate ............................................................. 22
3. The presumption against extraterritoriality
reinforces the inappropriateness of extending
Bivens to aliens injured abroad............................... 26
D. The purported inadequacy of alternative remedies
cannot justify extending Bivens .................................... 29
Conclusion ................................................................................... 35
TABLE OF AUTHORITIES
Cases:
Ashcrof t v. Iqbal, 556 U.S. 662 (2009) ................................ 8
Bank Markazi v. Peterson, 136 S. Ct. 1310 (2016) ............ 17
(III)
IV
Cases—Continued:
Page
Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388
(1971) .............................................................1, 2, 8, 10, 12, 13
Blue Chip Stamps v. Manor Drug Stores,
421 U.S. 723 (1975).............................................................. 23
Buck v. Colbath, 70 U.S. (3 Wall.) 334 (1866) ...................... 12
Bush v. Lucas, 462 U.S. 367 (1983) .................... 11, 20, 22, 26
Carlson v. Green, 446 U.S. 14 (1980) ................................... 11
Chappell v. Wallace, 462 U.S. 296 (1983) ............................ 11
City of Milwaukee v. Illinois, 451 U.S. 304 (1981) ............ 13
Correctional Servs. Corp. v. Malesko,
534 U.S. 61 (2001) ........................................... 10, 11, 12, 13
Davis v. Passman, 442 U.S. 228 (1979) ............................... 11
Department of Navy v. Egan, 484 U.S. 518 (1988) ............ 21
Erie R.R. v. Tompkins, 304 U.S. 64 (1938) ......................... 13
FDIC v. Meyer, 510 U.S. 471 (1994) .................................... 11
Graham v. Connor, 490 U.S. 386 (1989) ................................ 4
Gutierrez de Mar tinez v. Lamagno, 515 U.S. 417
(1995) .................................................................................... 30
Haig v. Agee, 453 U.S. 280 (1981) ........................................ 17
Hartman v. Moore, 547 U.S. 250 (2006).............................. 23
Hernandez v. Mesa, 137 S. Ct. 2003 (2017) .............. 2, 3, 5, 6
Imbler v. Pachtman, 424 U.S. 409 (1976)............................ 33
J. I. Case Co. v. Borak, 377 U.S. 426 (1964) ........................ 12
Jamison v. Wiley, 14 F.3d 222 (4th Cir. 1994) ................... 31
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108
(2013) ........................................................................ 26, 27, 28
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)........... 33
Meshal v. Higgenbotham, 804 F.3d 417
(D.C. Cir. 2015), cert. denied,
137 S. Ct. 2325 (2017) ................................................... 24, 28
V
Cases—Continued:
Page
Minneci v. Pollard, 565 U.S. 118 (2012) ............................. 11
Morrison v. National Austl. Bank Ltd., 561 U.S. 247
(2010) .................................................................................... 27
Oetjen v. Central Leather Co., 246 U.S. 297 (1918) ............ 17
RJR Nabisco, Inc. v. European Cmty.,
136 S. Ct. 2090 (2016) ............................................. 27, 28, 29
Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018),
petition for cert. pending, No. 18-309
(filed Sept. 7, 2018) ............................................................. 14
Sanchez-Espinoza v. Reagan,
770 F.2d 202 (D.C. Cir. 1985) ............................................. 18
Schweiker v. Chilicky, 487 U.S. 412
(1988) ........................................................................... passim
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) ................... 23
United States v. Cienfuegos, 462 F.3d 1160
(9th Cir. 2006) ...................................................................... 31
United States v. Delgado-Garcia, 374 F.3d 1337
(D.C. Cir. 2004), cert. denied, 544 U.S. 950 (2005) .......... 21
United States v. Stanley, 483 U.S. 669 (1987) ........... passim
United States v. Verdugo-Urquidez, 494 U.S. 259
(1990) ...................................................................................... 4
Vanderklok v. United States, 868 F.3d 189
(3d Cir. 2017) ................................................................. 21, 31
Webster v. Doe, 486 U.S. 592 (1988) ..................................... 32
Wilkie v. Robbins, 551 U.S. 537 (2007) ... 10, 11, 22, 29, 30, 33
Wise v. Withers, 7 U.S. (3 Cranch) 331 (1806) .................... 12
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ..................... passim
Constitution, statutes, and regulation:
U.S. Const.:
Art. I, § 8 .......................................................................... 17
Cl. 3 ............................................................................. 17
VI
Constitution, statutes, and regulation—Continued:
Page
Cl. 10 ........................................................................... 17
Cl. 11 ........................................................................... 17
Cl. 12 ........................................................................... 17
Cl. 13 ........................................................................... 17
Art. II, § 2......................................................................... 17
Amend. IV ............................................................... passim
Amend. V ................................................................. passim
Amend. VIII..................................................................... 11
Alien Tort Statute, 28 U.S.C. 1350 ........................................ 3
28 U.S.C. 1350 note 2 ...................................................... 24
Federal Tort Claims Act, 28 U.S.C. 2671 et seq. .................. 3
28 U.S.C. 2674 .................................................................. 23
28 U.S.C. 2680(k) ....................................................... 23, 34
Foreign Claims Act, ch. 67, 57 Stat. 66 ............................... 25
10 U.S.C. 2734(a) ............................................................. 25
10 U.S.C. 2734(a)(3) ......................................................... 25
10 U.S.C. 2734(b) ............................................................. 25
International Agreement Claims Act,
10 U.S.C. 2734a ................................................................... 25
10 U.S.C. 2734a(a) ........................................................... 25
Torture Victim Protection Act of 1991,
Pub. L. No. 102-256, 106 Stat. 73 ...................................... 24
Westfall Act, 28 U.S.C. 2679 ................................................... 4
28 U.S.C. 2679(b) ....................................................... 30, 32
28 U.S.C. 2679(b)(2)(A) ................................................... 33
28 U.S.C. 2679(d) ............................................................. 30
6 U.S.C. 111(b)(1)(A) ............................................................. 21
6 U.S.C. 111(b)(1)(E) ............................................................. 21
6 U.S.C. 211(c)........................................................................ 21
6 U.S.C. 211(e)(3)(B) ............................................................. 21
8 U.S.C. 1357(a)(5) ................................................................. 31
VII
Statutes and regulation—Continued:
Page
18 U.S.C. 3663A(a) ................................................................. 31
21 U.S.C. 904 .......................................................................... 25
22 U.S.C. 2669(b) ................................................................... 25
22 U.S.C. 2669-1 ..................................................................... 25
42 U.S.C. 1983 ........................................................ 9, 22, 23, 26
8 C.F.R. 287.10 ....................................................................... 31
Miscellaneous:
Exec. Order No. 13,732, § 2(b)(ii), 81 Fed. Reg.
44,486 (July 7, 2016) ............................................................ 24
Governments of Mexico and the United States of
America, Joint Statement on the U.S.-Mexico
Bilateral High Level Dialogue on Human Rights
(Oct. 27, 2016), https://2009-2017.state.gov/r/pa/prs/
ps/2016/10/263759.htm........................................................ 19
H.R. 5373, 77th Cong., 1st Sess. (1941) ............................... 23
William R. Mullins, The International Responsibility
of a State for Torts of Its Military Forces,
34 Mil. L. Rev. 59 (1966)..................................................... 24
U.S. Customs and Border Patrol:
CBP Releases Use of Force Policy Handbook
and Police Executive Research Forum Report
(May 30, 2014), https://www.cbp.gov/newsroom/
national-media-release/cbp-releases-use-forcepolicy-handbook-and-police-executive-research ....... 31
Investigations into Deaths in Custody and Useof-Force Incidents (July 27, 2015), https://www.
dhs.gov/sites/default/files/publications/Customs
%20and%20Border%20Protection%20(CBP)
%20-%20Investigations%20into%20Deaths%20
in%20Custody%20and%20Use-of-Force%20
Incidents.pdf ................................................................. 32
VIII
Miscellaneous—Continued:
Page
U.S. Dep’t of Homeland Sec., Written Testimony
for a House Comm. on Oversight and Government
Reform Hearing (Sept. 9, 2015), https://www.dhs.
gov/news/2015/09/09/written-testimony-dhssouthern-border-and-approaches-campaign-jointtask-force-west.................................................................... 19
U.S. Dep’t of Justice, Federal Officials Close Investigation into the Death of Sergio HernándezGuereca (Apr. 27, 2012), https://www.justice.gov/
opa/pr/federal-officials-close-investigation-deathsergio-Hernández-guereca ............................................ 3, 19
In the Supreme Court of the United States
No. 17-1678
JESUS C. HERNÁNDEZ, ET AL., PETITIONERS
v.
JESUS MESA, JR.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES
This case concerns a claim for damages under Bivens
v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), against a U.S. Border Patrol agent based on the allegedly unconstitutional use of
force at an international border. The United States has
a significant interest in this matter because a ruling permitting aliens injured abroad to bring damages claims
against federal officials would implicate the federal government’s oversight of foreign policy and could interfere
with its officials’ performance of national-security functions. At the Court’s invitation, the United States filed
a brief as amicus curiae at the petition stage of this case.
(1)
2
STATEMENT
In Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), this Court created a cause of action for damages against federal officials who allegedly violated a U.S. citizen’s Fourth
Amendment rights by conducting a warrantless search
and arrest in his home in the United States. In this case,
petitioners seek to invoke Bivens to recover damages
from a U.S. Border Patrol agent for the death of their
son, a Mexican national, in Mexico as the result of a
shooting across the international border with the United
States. Petitioners allege that the shooting violated
standards for the use of force purportedly found in the
Fourth and Fifth Amendments, and they contend that
those constitutional provisions and the judicially created
Bivens remedy should be extended to aliens injured
abroad.
1. Petitioners allege that in 2010, their son, Sergio
Adrián Hernández Güereca (Hernández), a 15-year-old
Mexican citizen, was playing with friends in the cement
culvert that separates El Paso, Texas, from Ciudad Juárez, Mexico. Hernandez v. Mesa, 137 S. Ct. 2003, 2005
(2017) (per curiam). The international border in that location runs down the middle of the culvert, with a fence
atop the embankment on the U.S. side. Ibid. Petitioners
allege that Hernández and his friends played a game in
which they crossed the border into the United States,
ran up the embankment to touch the fence, and then ran
back into Mexico. Ibid.
Petitioners further allege that respondent, U.S. Border Patrol agent Jesus Mesa, Jr., arrived on the scene,
detained one of Hernández’s friends on the U.S. side of
the culvert, and then, while standing in U.S. territory,
fatally shot Hernández, who had fled back into Mexico.
3
Hernandez, 137 S. Ct. at 2005. According to petitioners,
Hernández “had no interest in entering the United
States” and was “unarmed and unthreatening” at the
time. Pet. App. 199. The FBI, however, released a
statement contradicting petitioners’ version of events
and explaining that Agent Mesa had resorted to force
only after Hernández and others had refused to follow
commands to stop throwing rocks at him. Id. at 199-200.
The Department of Justice (DOJ) conducted a “comprehensive and thorough investigation into the shooting” and declined to bring criminal charges against
Agent Mesa. DOJ, Federal Officials Close Investigation into the Death of Sergio Hernández-Guereca (Apr.
27, 2012) (DOJ Statement). 1 DOJ’s investigation indicated that, “on these particular facts,” Agent Mesa “did
not act inconsistently with [Border Patrol] policy or
training regarding use of force.” Ibid. DOJ expressed
the United States’ regret about Hernández’s death and
reiterated the United States’ commitment to investigating and prosecuting allegations of excessive force, as
well as “work[ing] with the Mexican government * * *
to prevent future incidents.” Ibid.
2. a. Petitioners initially sued the United States,
several federal agencies, and unknown Border Patrol
agents, asserting claims under the Federal Tort Claims
Act (FTCA), 28 U.S.C. 2671 et seq.; the Alien Tort Statute (ATS), 28 U.S.C. 1350; and Bivens. Pet. App. 172 &
n.3. Petitioners later named Agent Mesa as one of
the individual defendants, alleging that he had violated
Hernández’s Fourth and Fifth Amendment rights. Id.
at 204.
https://www.justice.gov/opa/pr/federal-officials-close-investigationdeath-sergio-Hernández-guereca.
1
4
b. Pursuant to the Westfall Act, 28 U.S.C. 2679, the
district court substituted the United States as the sole
defendant for petitioners’ FTCA and ATS claims. Pet.
App. 176. It then dismissed those claims on sovereignimmunity grounds. Id. at 170-192.
The district court separately dismissed petitioners’
Bivens claim against Agent Mesa. Pet. App. 159-169.
The court concluded that Agent Mesa was entitled to
qualified immunity because, under United States v.
Verdugo-Urquidez, 494 U.S. 259 (1990), an alien with no
voluntary connection to the United States lacks extraterritorial Fourth Amendment rights, and, under Graham v. Connor, 490 U.S. 386 (1989), an excessive-force
claim could not be brought under the Fifth Amendment.
Pet. App. 163-169. 2
3. a. Initially, a three-judge panel of the court of appeals affirmed in part, reversed in part, and remanded.
Pet. App. 100-158. The panel agreed that petitioners
could not invoke the Fourth Amendment, but it rejected
Agent Mesa’s qualified-immunity defense as to the Fifth
Amendment. Id. at 119-138, 150-154. The panel also determined that a Bivens remedy was appropriate here.
Id. at 138-150.
b. The court of appeals granted rehearing en banc
and affirmed the dismissal of petitioners’ Bivens claim.
Pet. App. 45-49. The court determined that petitioners
had failed to allege a Fourth Amendment violation because Hernández was “a Mexican citizen who had no
‘significant voluntary connection’ to the United States”
and “was on Mexican soil at the time he was shot.” Id.
Petitioners voluntarily dismissed their claims against two other
agents, and the district court granted summary judgment to the remaining individual defendants. Pet. App. 106-107. Those claims are
not at issue here.
2
5
at 46 (quoting Verdugo-Urquidez, 494 U.S. at 271). And
while the court was “somewhat divided on the question
of whether Agent Mesa’s conduct violated the Fifth
Amendment,” it was “unanimous in concluding that any
properly asserted right was not clearly established.” Id.
at 48. Because it rejected petitioners’ claim on the merits, the court did not consider whether Bivens should be
extended to this context. See id. at 45-49.
4. This Court granted certiorari. In addition to the
Fourth and Fifth Amendment questions, the Court directed the parties to address whether petitioners’ claim
may be asserted under Bivens.
a. While this case was pending, the Court decided
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). In that case, the
Court reaffirmed that “expanding the Bivens remedy is
now a ‘disfavored’ judicial activity.” Id. at 1857 (citation
omitted). And it clarified the Bivens inquiry in two
ways. First, it explained that a case presents a “new
context” for Bivens purposes if “the case is different in
a meaningful way” from the three previous decisions in
which the Court has recognized a Bivens remedy. Id. at
1859. Second, the Court explained that, in determining
whether “special factors” counsel against extending
Bivens to a new context, if “there are sound reasons to
think Congress might doubt the efficacy or necessity of
a damages remedy as part of the system for enforcing
the law and correcting a wrong, the courts must refrain
from creating the remedy in order to respect the role of
Congress.” Id. at 1858-1859.
b. In this case, the Court vacated the judgment of the
court of appeals and remanded for the court to address
the “antecedent” question whether a Bivens remedy is
available in light of the Court’s intervening guidance in
Abbasi. Hernandez, 137 S. Ct. at 2006 (citation omitted).
6
Given Abbasi’s clarification of the “ ‘special factor[]’ ”
analysis, the Court observed that deciding the “sensitive” Fourth Amendment question could be “unnecessary to resolve this particular case.” Id. at 2006-2007
(citation omitted). The Court also rejected a portion of
Agent Mesa’s qualified-immunity defense as to the Fifth
Amendment, although it remanded for the consideration
of other qualified-immunity arguments “if necessary.”
Id. at 2007.
Justice Thomas dissented. Hernandez, 137 S. Ct. at
2008. He noted that this case is “meaningfully different
from * * * Bivens and its progeny,” including because
it “involves cross-border conduct.” Ibid. Accordingly,
he would have “decline[d] to extend Bivens” and would
have “affirm[ed] the judgment of the Court of Appeals
on that basis.” Ibid.
Justice Breyer, joined by Justice Ginsburg, also dissented. Hernandez, 137 S. Ct. at 2008-2011. He would
have held that the Fourth Amendment applies, which, in
his view, “would ordinarily bring with it the right to
bring an action for damages under Bivens.” Id. at 2008.
5. On remand, the en banc court of appeals again affirmed the dismissal of the claim against Agent Mesa.
Pet. App. 1-23.
Applying Abbasi’s two-part framework, the court of
appeals first concluded that “the cross-border shooting
at issue here must present a ‘new context’ for a Bivens
claim.” Pet. App. 8. It explained that this case differs
from previous cases in terms of 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.” Ibid.
7
The court of appeals next concluded that this new
context presents numerous “special factors” counseling
against an implied Bivens remedy. Pet. App. 11-23. The
court determined that extending Bivens to this context
would “threaten[] the political branches’ supervision of
national security,” id. at 13, and would “risk[] interference with foreign affairs and diplomacy more generally,” id. at 15. It also explained that Congress’s intentional omission of damages remedies for injuries to foreign citizens in foreign territory counsels against implying such a remedy here. Id. at 16-18. Finally, the court
observed that “the extraterritorial aspect of this case is
itself a special factor that underlies and aggravates the
separation-of-powers issues already discussed.” Id. at
19; see id. at 19-22. The court accordingly concluded
that “this is not a close case.” Id. at 22.
Judge Dennis concurred in the judgment. Pet. App.
23-25. He would have avoided the Bivens question and
instead would have found that Agent Mesa is entitled to
qualified immunity. Ibid.
Judge Haynes concurred but wrote separately to
note that the ATS and FTCA claims against the United
States were not before the en banc court. Pet. App. 25. 3
Judge Prado, joined by Judge Graves, dissented.
Pet. App. 25-42. He agreed with the majority that this
case presents a new context, but he would have concluded that no “special factors counsel hesitation in recognizing a Bivens remedy.” Id. at 26.
Because the case involving the United States was severed from
this case, the United States participated below and participates here
as an amicus curiae rather than a respondent.
3
8
SUMMARY OF ARGUMENT
In Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), this Court recognized an implied private right of action for damages
against federal officials alleged to have violated a U.S.
citizen’s Fourth Amendment rights in his home. That
judicially created damages remedy should not be extended to the markedly different claim in this case.
A. Given the “notable change in the Court’s approach
to recognizing implied causes of action, the Court has
made clear that expanding the Bivens remedy is now
a ‘disfavored’ judicial activity.” Ziglar v. Abbasi,
137 S. Ct. 1843, 1857 (2017) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 675 (2009)). The Court has thus “consistently refused to extend Bivens to any new context or
new category of defendants” for nearly 40 years. Ibid.
(citation omitted). And it has admonished that “if there
are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy,” then courts
“must refrain” from extending Bivens. Id. at 1858.
B. Petitioners seek to extend Bivens to an injury suffered by an alien abroad in a cross-border shooting by a
U.S. Border Patrol agent. The injury alleged here
plainly differs from the warrantless domestic invasion of
a citizen’s home in Bivens, and those differences have
significant implications for the separation of powers.
This case thus presents a “new context” for Bivens purposes, as every judge to have considered the question
has agreed.
C. Several special factors counsel against extending
a Bivens remedy to aliens injured abroad. To begin,
such an extension would interfere with the political
branches’ constitutional power over foreign affairs. An
injury inflicted by the United States on a foreign citizen
9
in another country’s sovereign territory is, by definition,
an incident with international implications. This case illustrates that point: Both the problem of border security in general and the specific incident at issue have
prompted exchanges between the United States and
Mexico. In addition, with respect to claims against Border Patrol agents for aliens’ injuries abroad, nationalsecurity concerns increase the need for caution before
inserting the courts into such sensitive matters.
That need for caution is reinforced by the fact that,
in a variety of related contexts—including the statutory
remedy for persons deprived of constitutional rights by
state officials, 42 U.S.C. 1983—Congress has declined to
provide aliens injured abroad with the sort of judicial
damages remedy that petitioners seek. Instead, where
Congress has addressed injuries inflicted by the government on aliens abroad, it has relied on voluntary payments or administrative claims mechanisms. The general presumption against extraterritoriality further confirms that Bivens should not apply here: It would be
anomalous to extend a judicially inferred remedy when
the Court would not extend an express statutory cause
of action absent a clear indication that Congress intended to reach injuries beyond our Nation’s borders.
D. Petitioners contend that the Court should infer a
Bivens remedy here because they lack adequate alternative remedies in light of Congress’s preemption of
state tort suits. Yet this Court has repeatedly recognized that “it is irrelevant to a ‘special factors’ analysis
whether the laws currently on the books afford [a plaintiff ] * * * an ‘adequate’ federal remedy for his injuries.” United States v. Stanley, 483 U.S. 669, 683 (1987).
Moreover, petitioners overstate the lack of other remedies: State tort suits remain available where (unlike
10
here) the federal officer is found to have acted outside
the scope of his employment, and a variety of executive
responses are also possible.
Regardless of whether such other remedies are available in this particular case, a “freestanding damages
remedy for a claimed constitutional violation * * * is
not an absolute entitlement.” Wilkie v. Robbins,
551 U.S. 537, 550 (2007). Indeed, Congress’s determination to preempt state tort remedies against Agent Mesa
and not to waive sovereign immunity for the United
States is precisely the sort of legislative judgment that
this Court should respect by declining to substitute a
damages remedy of its own.
ARGUMENT
THE JUDICIALLY CREATED BIVENS REMEDY SHOULD
NOT BE EXTENDED TO ALIENS INJURED ABROAD
A. For Nearly 40 Years, This Court Has Consistently
Declined To Extend Bivens To New Contexts Where
Special Factors Counsel Hesitation
1. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), this Court
“recognized for the first time an implied private action
for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Correctional
Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The
Court held that, despite the absence of such a remedy in
the Fourth Amendment or in any statute, federal narcotics agents could be sued for damages for conducting
a warrantless search and arrest in a U.S. citizen’s home
in the United States. Bivens, 403 U.S. at 389. The Court
reasoned that even though “the Fourth Amendment
does not in so many words provide for its enforcement
by an award of money damages for the consequences of
11
its violation,” federal courts could infer that “particular
remedial mechanism,” as they had done for several federal statutes. Id. at 396-397. In creating that cause of
action, however, the Court emphasized that the case
presented “no special factors counselling hesitation in
the absence of affirmative action by Congress.” Id. at
396.
Since deciding Bivens in 1971, this Court has “extended its holding only twice.” Malesko, 534 U.S. at 70.
In Davis v. Passman, 442 U.S. 228 (1979), the Court allowed a Fifth Amendment claim against a Congressman
for firing his female secretary. Id. at 248-249. And in
Carlson v. Green, 446 U.S. 14 (1980), the Court allowed
an Eighth Amendment claim against prison officials for
a failure to provide medical treatment that led to an inmate’s death. Id. at 19-23 & n.1. In each case, the Court
reiterated that it found “no special factors counselling
hesitation in the absence of affirmative action by Congress.” Id. at 19; see Davis, 442 U.S. at 245.
In the nearly 40 years since Carlson, this Court has
“consistently refused to extend Bivens to any new context or new category of defendants.” Ziglar v. Abbasi,
137 S. Ct. 1843, 1857 (2017) (citing Malesko, 534 U.S. at
68). Nine decisions of this Court have squarely rejected
efforts to expand Bivens. See Abbasi, supra; Minneci
v. Pollard, 565 U.S. 118 (2012); Wilkie v. Robbins,
551 U.S. 537 (2007); Malesko, supra; FDIC v. Meyer,
510 U.S. 471 (1994); Schweiker v. Chilicky, 487 U.S. 412
(1988); United States v. Stanley, 483 U.S. 669 (1987);
Bush v. Lucas, 462 U.S. 367 (1983); Chappell v. Wallace,
462 U.S. 296 (1983).
In Abbasi, the Court explained that its consistent refusal to extend Bivens reflects its changed understanding of the scope of judicial authority to create private
12
rights of action. 137 S. Ct. at 1855-1587. As the Court
observed in Malesko, 534 U.S. at 67, Bivens “rel[ied]
largely on earlier decisions implying private damages
actions into federal statutes.” See Bivens, 403 U.S. at
397 (citing J. I. Case Co. v. Borak, 377 U.S. 426 (1964));
id. at 402-403 & n.4 (Harlan, J., concurring in the judgment) (same). “During this ‘ancien regime,’ ” the Court
“assumed it to be a proper judicial function” to imply
causes of action “not explicit in the statutory text itself.”
Abbasi, 137 S. Ct. at 1855 (citation omitted). But in the
decades since Bivens, the Court has made clear that the
creation of damages remedies is a legislative function,
ibid., and it has “retreated from [its] previous willingness to imply a cause of action where Congress has not
provided one.” Malesko, 534 U.S. at 67 n.3. “Given the
notable change in [its] approach to recognizing implied
causes of action,” the Court has explained that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Abbasi, 137 S. Ct. at 1857 (citation omitted). Indeed, “it is possible that the analysis in the Court’s three
Bivens cases might have been different if they were decided today.” Id. at 1856.
2. Petitioners ignore the separation-of-powers concerns that have motivated this Court’s reluctance to extend Bivens. Instead, they attempt (Br. 10-20) to
ground Bivens—and their proposed expansion of it—in
a historical tradition of subjecting federal officers to
“common law tort liability for their misconduct,” id. at
10, most often under the law of trespass. See, e.g., Buck
v. Colbath, 70 U.S. (3 Wall.) 334 (1866); Wise v. Withers,
7 U.S. (3 Cranch) 331 (1806). That attempt misunderstands the doctrinal underpinnings of Bivens.
The Court in Bivens did not treat its newly created
damages remedy as an extension of common-law tort
13
suits. Rather, it “recognized for the first time an implied
private action for damages” directly under the Constitution. Malesko, 534 U.S. at 66; see Bivens, 403 U.S. at
428 (Black, J., dissenting) (noting that the Court had
“create[d] a cause of action where none has existed since
the formation of our Government”). To the extent it
built on an existing doctrinal framework, the Court borrowed the reasoning that it had used to infer private
rights of action under several federal statutes, see
Malesko, 534 U.S. at 67—reasoning that “began to lose
[its] force” shortly thereafter, Abbasi, 137 S. Ct. at 1855.
The Court in Bivens therefore did not create the freestanding federal-common-law tort that petitioners envision. Nor could it reasonably have done so, as it had
been clear since Erie R.R. v. Tompkins, 304 U.S. 64
(1938), that federal courts “are not general common-law
courts.” City of Milwaukee v. Illinois, 451 U.S. 304, 312
(1981). The common-law tradition that petitioners emphasize is thus beside the point for Bivens purposes.
B. This Case Presents A New Context For A Bivens Remedy
1. Abbasi held that a case presents a “new context”
for Bivens purposes if “the case is different in a meaningful way” from “the three Bivens claims the Court has
approved in the past”—i.e., the claims in Bivens, Davis,
and Carlson. Abbasi, 137 S. Ct. at 1859-1860. A case
might be “ ‘different in a meaningful way’ ” from those
cases if, for example, it creates a “risk of disruptive intrusion by the Judiciary into the functioning of other
branches”; “if it implicates a different constitutional
right; if judicial precedents provide a less meaningful
guide for official conduct; or if there are potential special
factors that were not considered in previous Bivens
cases.” Id. at 1860-1861, 1864 (citation omitted). As the
14
Court emphasized, “even a modest extension is still an
extension.” Id. at 1864.
Abbasi itself illustrates the point. The Court concluded that a prisoner-abuse claim against a prison warden presented a “new context” even though the claim
had “significant parallels” to the claim in Carlson and
involved “just as compelling” allegations of prisoner injury “as those at issue in Carlson.” Abbasi, 137 S. Ct. at
1864. But because the asserted constitutional right was
different, less judicial guidance existed on the warden’s
duties, and Congress had not extended Carlson’s damages remedy, the Court concluded that “the new-context
inquiry [was] easily satisfied.” Id. at 1865; see id. at
1864-1865.
This case likewise presents a new context under
Abbasi because it differs in “meaningful way[s]” from
the previous cases in which this Court has recognized a
Bivens remedy. Pet. App. 8; see id. at 7-11. Most obviously, this Court has never recognized a Bivens remedy
arising from an injury to a foreign citizen in another
country’s sovereign territory. For that reason, every
court of appeals judge to consider the question—
including the dissenting judges in the en banc Fifth Circuit and a panel in the Ninth Circuit that found Bivens
liability in a parallel case—has agreed that this type of
case presents a new context. See id. at 26; Rodriguez v.
Swartz, 899 F.3d 719, 738 (9th Cir. 2018), petition for
cert. pending, No. 18-309 (filed Sept. 7, 2018). Indeed,
this Court’s remand order in Hernandez presupposed
that the case presents a new context, as the Court remanded in light of Abbasi’s “clarif[ication]” of “what
constitutes a special factor counselling hesitation.”
137 S. Ct. at 2006 (brackets, citation, and internal quotation marks omitted).
15
2. Petitioners nevertheless contend (Br. 21-26) that
this case does not present a new context, in part because
the Court has previously inferred Bivens remedies under the Fourth and Fifth Amendments. As an initial
matter, the Court has never recognized a Bivens remedy for an asserted violation of the substantive due process component of the Fifth Amendment. More fundamentally, Abbasi rejected the notion that reliance on the
same “constitutional right * * * at issue in a previous
Bivens case” is dispositive of whether a plaintiff ’s challenge is brought in a novel context. 137 S. Ct. at 1859.
If it were, then, for example, the “Court should have
held that [Malesko and Carlson] arose in the same context,” as the two cases involved the same constitutional
right and “almost parallel circumstances.” Ibid.
Petitioners also assert (Br. 22) that their claim “resemble[s] the specific facts of Bivens.” To the contrary,
like the various claims in Abbasi—including a prisonerabuse claim that did not involve any “high-level policy
decisions,” id. at 23—a claim of injury suffered by a foreign national in a foreign country as a result of a Border
Patrol agent’s actions at an international border
“bear[s] little resemblance” to a “claim against FBI
agents for handcuffing a man in his own home without a
warrant.” Abbasi, 137 S. Ct. at 1860. After all, unlike
any Bivens claim that this Court has recognized, “the
defining characteristic of this case is that it is not domestic.” Pet. App. 13. It thus plainly requires a (more
than) “modest extension.” Abbasi, 137 S. Ct. at 1864.
C. Multiple Special Factors Counsel Hesitation Before
Extending A Bivens Remedy To Aliens Injured Abroad
In determining whether a new context presents a
“ ‘special factor counselling hesitation,’ ” a court “must
16
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 1857-1858. This
Court has explained that relevant considerations include
whether “Congress has designed its regulatory authority in a guarded way, making it less likely that Congress
would want the Judiciary to interfere”; whether “an alternative remedial structure” is available; or whether
“some other feature of [the] case,” such as the implications for policymaking, the burdens of litigation and liability, or the potential for intrusion on the political
branches’ prerogatives, “causes a court to pause before
acting without express congressional authorization.” Id.
at 1858; see id. at 1860-1863. If there are any “sound
reasons to think Congress might doubt the efficacy or
necessity of a damages remedy as part of the system for
enforcing the law and correcting a wrong, the courts
must refrain from creating the remedy in order to respect the role of Congress.” Id. at 1858 (emphasis
added).
Here, multiple special factors counsel hesitation.
First, claims by aliens injured abroad risk judicial interference with matters that the Constitution has committed to the political branches. Second, the need for caution is reinforced by the fact that, in a variety of statutes,
Congress has long taken care not to provide aliens injured abroad with the sort of judicial damages remedy
petitioners seek. Third, the general presumption against
extraterritoriality further underscores the separationof-powers consequences of the Judiciary’s acting where
Congress has not.
17
1. Claims by aliens injured abroad implicate foreign
affairs and national security
a. “The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative—‘the political’—Departments.”
Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918);
see, e.g., U.S. Const. Art. I, § 8, Cls. 3, 10, 11, 12, 13; Art.
II, § 2. “[F]oreign affairs” is thus “a domain in which the
controlling role of the political branches is both necessary and proper.” Bank Markazi v. Peterson, 136 S. Ct.
1310, 1328 (2016). In recognition of the political
branches’ special competence and responsibility, this
Court has long held that “[m]atters intimately related to
foreign policy and national security are rarely proper
subjects for judicial intervention.” Haig v. Agee,
453 U.S. 280, 292 (1981).
This Court has made clear that Bivens should not be
expanded to an area that the Constitution commits to
the political branches. For example, in Chappell and
Stanley, the Court declined to extend Bivens to claims
in the military context, emphasizing that “congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.” Stanley, 483 U.S. at 683; see
Chappell, 462 U.S. at 300-302. Likewise, in Abbasi, the
Court declined to extend Bivens to challenges to confinement conditions imposed pursuant to executive policy in the wake of the September 11 attacks. 137 S. Ct.
at 1858-1863. The Court emphasized that “[ j]udicial inquiry into the national-security realm raises ‘concerns
for the separation of powers in trenching on matters
committed to the other branches,’ ” which are “even more
pronounced” in the context of a claim seeking money
damages. Id. at 1861 (citation omitted).
18
The same logic precludes the extension of Bivens to
aliens injured by federal officials in foreign territory. As
the Fifth Circuit explained, “the United States government is always responsible to foreign sovereigns when
federal officials injure foreign citizens on foreign soil.”
Pet. App. 15. Judicial examination of the government’s
treatment of aliens outside the United States would inject the courts into sensitive matters of international diplomacy and risk “what [this] Court has called in another context ‘embarrassment of our government
abroad’ through ‘multifarious pronouncements by various departments on one question.’ ” Sanchez-Espinoza
v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985) (Scalia, J.)
(citation omitted). Moreover, “damage remedies * * *
for allegedly unconstitutional treatment of foreign subjects causing injury abroad” could carry other “foreign
affairs implications”—including “the danger of foreign
citizens’ using the courts * * * to obstruct the foreign
policy of our government.” Ibid.
This case illustrates the inevitable foreign-affairs implications of Bivens suits by aliens injured abroad. The
Government of Mexico has filed an amicus brief explaining (at 1, 3) that “[a]s a sovereign and independent
state,” it has a “vital interest in working with the United
States to improve the safety and security of the border
and to ensure that both countries’ agents act to protect
* * * the safety of the public in the border area.” Issues of border security, including cross-border shootings, have been of great concern to the United States’
bilateral relationship with Mexico for several years. In
2014, the two governments established a joint Border
Violence Prevention Council to provide a standing forum
19
in which to address issues of border violence. 4 Mexico
and the United States have also addressed cross-border
shootings in other forums, including the U.S.-Mexico Bilateral Human Rights Dialogue. 5 And the particular incident here has prompted bilateral exchanges, including
Mexico’s request that Agent Mesa be extradited to face
criminal charges. Pet. App. 30; Mexico Amicus Br. 10.
After a comprehensive DOJ investigation concluded
that Agent Mesa did not violate Border Patrol policy on
the use of force, the United States declined to extradite
him, but it has reiterated its commitment to “work with
the Mexican government within existing mechanisms
and agreements to prevent future incidents.” DOJ
Statement.
Petitioners respond (Br. 29) that the mere presence
of “a foreign fact” does not establish “genuine foreign
affairs concerns.” But the foreign-affairs concerns presented by these facts, far from being a “nonsensical non
sequitur” (ibid.), are straightforward: The injury of an
alien by a federal officer in foreign territory is a matter
that triggers diplomatic discussions, and the involvement of the Judicial Branch may interfere with the Executive Branch’s negotiations or representations. Here,
for example, the Executive has determined that Agent
Mesa did not act improperly and has taken that position
Dep’t of Homeland Sec., Written Testimony for a House Comm.
on Oversight and Government Reform Hearing (Sept. 9, 2015),
https://www.dhs.gov/news/2015/09/09/written-testimony-dhs-southernborder-and-approaches-campaign-joint-task-force-west.
5
Governments of Mexico and the United States of America, Joint
Statement on the U.S.-Mexico Bilateral High Level Dialogue on
Human Rights (Oct. 27, 2016), https://2009-2017.state.gov/r/pa/prs/
ps/2016/10/263759.htm.
4
20
in discussions with Mexico, a position that would be undermined if a federal court entered a contrary judgment, including by bolstering Mexico’s request that
Agent Mesa be extradited to Mexico. The fact that the
Governments of Mexico and the United States disagree
over the availability of a damages remedy in this case,
see id. at 30, only underscores the foreign-affairs concerns with judicial intrusion.
More generally, petitioners suggest (Br. 29-30) that
courts can mitigate foreign-affairs concerns by undertaking an ad hoc analysis of the international impact of
recognizing a damages remedy in a particular case,
based on their assessment of the reaction of foreign governments. The Judiciary is ill-suited to make such
determinations—and attempting to make them on a
case-by-case basis would itself intrude on foreign affairs. See Stanley, 483 U.S. at 682 (rejecting “[a] test
for liability that depends on the extent to which particular suits would call into question military discipline and
decisionmaking,” which “would itself require judicial inquiry into, and hence intrusion upon, military matters”).
Abbasi accordingly makes clear that the question
whether to imply a damages remedy is not limited to its
impact in a particular case. By framing the question as
whether the Judiciary or Congress should consider the
impact of a damages remedy “on governmental operations systemwide,” Abbasi acknowledged that the specialfactors analysis must account for the costs and consequences of a new class of tort liability. 137 S. Ct. at 1858;
see, e.g., Bush, 462 U.S. at 389 (“Congress is in a far better position than a court to evaluate the impact of a new
species of litigation between federal employees.”).
b. Permitting aliens injured abroad to bring Bivens
suits against the particular set of defendants here—
21
Border Patrol agents—also would have clear implications for national security. Just as with foreign affairs,
the Constitution reserves questions of national security
for the political branches. See Abbasi, 137 S. Ct. at 1861;
see also Department of Navy v. Egan, 484 U.S. 518, 530
(1988) (“[C]ourts traditionally have been reluctant to intrude upon the authority of the Executive in military and
national security affairs” unless “Congress specifically
has provided otherwise.”).
As the court of appeals explained, Congress has
charged the Department of Homeland Security (DHS)
and its components, including the U.S. Border Patrol,
with “prevent[ing] terrorist attacks within the United
States” and “securing the homeland.”
6 U.S.C.
111(b)(1)(A) and (E); see Pet. App. 13; see also 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.”), cert. denied, 544 U.S. 950
(2005). Within DHS, Congress specifically charged the
Border Patrol with carrying out that national-security
mission by “deter[ring] and prevent[ing] the illegal entry of terrorists, terrorist weapons, persons, and contraband.” 6 U.S.C. 211(e)(3)(B); see 6 U.S.C. 211(c). Imposing damages liability on individual agents executing
those important national-security functions at the border “could undermine the Border Patrol’s ability to perform duties essential to national security” by “increas[ing] the likelihood that Border Patrol agents will ‘hesitate in making split second decisions.’ ” Pet. App. 13, 15
(quoting Vanderklok v. United States, 868 F.3d 189, 207
(3d Cir. 2017)).
Petitioners contend (Br. 26-28) that this particular
suit does not implicate national security and is instead
22
akin to a matter of domestic law enforcement. That contention is both wrong and irrelevant. It is wrong because, at an appropriate level of generality, the facts alleged in petitioners’ complaint do implicate border security, which Congress has linked to national security:
Several individuals repeatedly crossed an international
border, and a responding officer detained one suspect
who had crossed the border illegally and fired a weapon
across the border at another suspect. See Pet. App. 198199. It is irrelevant because, even if the specific facts
alleged do not implicate national security, the key question is whether special factors counsel against extending
Bivens to the relevant class of cases. See Wilkie,
551 U.S. at 550; Stanley, 483 U.S. at 682; Bush, 462 U.S.
at 389. A class of cases involving aliens injured abroad
by Border Patrol agents by definition targets bordersecurity activities distinct from the ordinary domestic
activities performed by law enforcement (including Border Patrol agents) in the United States.
2. Congress’s consistent decisions not to provide a
judicial damages remedy to aliens injured abroad
confirm that a Bivens remedy is inappropriate
A variety of statutes indicate that Congress’s omission of the damages remedy that plaintiffs seek was not
an “oversight,” confirming that it would be inappropriate for the Judiciary to create a damages remedy here
when Congress has elected not to do so. Abbasi,
137 S. Ct. at 1862; see Schweiker, 487 U.S. at 423.
a. Where Congress has provided judicial damages
remedies against governmental officials, it has taken
care not to extend those remedies to injuries suffered by
aliens abroad. Most relevant, when Congress enacted
Section 1983 to provide a statutory remedy for individu-
23
als whose constitutional rights are violated by state officers, it expressly limited the remedy to “citizen[s] of
the United States or other person[s] within the jurisdiction thereof.” 42 U.S.C. 1983. Because Bivens judicially
implied a federal damages action against federal officers, whereas Congress expressly created such an action
against state officers in Section 1983, Congress’s express limitation on the reach of Section 1983 should, a
fortiori, limit the reach of Bivens. See Hartman v.
Moore, 547 U.S. 250, 254 n.2 (2006) (describing Bivens
as the “more limited * * * federal analog” to Section
1983). It would turn separation-of-powers principles on
their head to judicially infer liability for federal officers
that Congress has expressly rejected for state officers.
Cf. Blue Chip Stamps v. Manor Drug Stores, 421 U.S.
723, 736 (1975) (“It would indeed be anomalous to impute
to Congress an intention to expand the plaintiff class for
a judicially implied cause of action beyond the bounds it
delineated for comparable express causes of action.”).
Similarly, although the FTCA waives the United
States’ sovereign immunity for certain injuries inflicted
by federal employees generally, 28 U.S.C. 2674, Congress specifically excluded “[a]ny claim arising in a foreign country,” 28 U.S.C. 2680(k). The foreign-country
exception was motivated in part by Congress’s “unwillingness to subject the United States to liabilities depending upon the laws of a foreign power,” which would
have governed FTCA claims arising abroad. Sosa v.
Alvarez-Machain, 542 U.S. 692, 707 (2004) (brackets
and citation omitted). But avoiding the application of
foreign law was not Congress’s only goal. Even before
DOJ raised concerns about foreign law, the bill that became the FTCA excluded “all claims ‘arising in a foreign
country in behalf of an alien.’ ” Ibid. (quoting H.R. 5373,
24
77th Cong., 1st Sess. 8 (1941)) (emphasis added). That
history demonstrates that Congress’s decision not to
provide an FTCA remedy to aliens injured in foreign
countries reflected adherence to the traditional practice
of addressing such injuries through nonjudicial means.
See pp. 24-26, infra.
More recently, in the Torture Victim Protection Act
of 1991 (TVPA), Pub. L. No. 102-256, 106 Stat. 73, Congress created a cause of action for damages against “[a]n
individual who, under actual or apparent authority, or
color of law, of any foreign nation,” subjects another individual to “torture” or “extrajudicial killing.” 28 U.S.C.
1350 note 2. “But the statute exempts U.S. officials, a
point that President George H.W. Bush stressed when
signing the legislation.” Meshal v. Higgenbotham,
804 F.3d 417, 430 (D.C. Cir. 2015) (Kavanaugh, J., concurring), cert. denied, 137 S. Ct. 2325 (2017). “In confining the coverage of statutes such as the [FTCA] and the
[TVPA], Congress has deliberately decided not to fashion a cause of action” for aliens injured abroad by federal
officials. Ibid. Congress’s repeated decisions not to provide such a remedy counsel strongly against the Judiciary’s creating one.
b. When Congress has provided compensation for aliens injured abroad, it has done so through tailored administrative mechanisms, not by authorizing suits in
federal court.
Traditionally, injuries suffered by aliens abroad were
addressed through diplomatic negotiations, which could
result in ex gratia payments to injured parties. See William R. Mullins, The International Responsibility of a
State for Torts of Its Military Forces, 34 Mil. L. Rev. 59,
61-65 & n.22 (1966); see also, e.g., Exec. Order No.
13,732, § 2(b)(ii), 81 Fed. Reg. 44,486 (July 7, 2016)
25
(providing for ex gratia condolence payments to civilians
injured or killed by certain uses of military force).
In certain recurring circumstances, Congress has determined that the United States’ interests would be better served by establishing administrative claims procedures. In 1942, during World War II, Congress enacted
the Foreign Claims Act (FCA), ch. 67, 57 Stat. 66, “[t]o
promote and to maintain friendly relations” with the increasing number of foreign countries in which U.S. military personnel were stationed. 10 U.S.C. 2734(a). The
FCA allows the military to establish administrative
claims commissions to pay certain claims for personal
injuries, death, or property damage suffered by “any inhabitant of a foreign country” as a result of the noncombat
activities of U.S. military forces. 10 U.S.C. 2734(a)(3). A
companion statute, the International Agreement Claims
Act, 10 U.S.C. 2734a, also allows the military to make
payments under “an international agreement which provides for the settlement or adjudication and cost sharing
of claims against the United States arising out of the
acts or omissions of a member or civilian employee of an
armed force of the United States.” 10 U.S.C. 2734a(a).
In addition, Congress has in limited circumstances
authorized specific agencies to pay claims for torts occurring abroad, including torts arising from the overseas operations of the Department of State, 22 U.S.C.
2669-1, and the Drug Enforcement Administration,
21 U.S.C. 904. 6 In those statutes, as under the FCA,
Congress has also authorized the Department of State to use appropriated funds to “settle and pay any meritorious claim against
the United States which is presented by a government of a foreign
country for damage to or loss of real or personal property of, or personal injury to or death of, any national of such foreign country,”
subject to various limitations. 22 U.S.C. 2669(b). The Department
6
26
Congress provided an administrative remedy subject to
careful constraints, see, e.g., 10 U.S.C. 2734(b); it did not
permit the injured parties to bring suit in court.
c. Petitioners contend (Br. 32-34) that congressional
inaction does not qualify as a “special factor” in this case
because Congress has not legislated about cross-border
shootings and has infrequently legislated about the tort
liability of federal officers. That assertion ignores the
FTCA’s foreign-country exception—which precludes liability in the precise circumstances here, as petitioners
elsewhere acknowledge (Br. 20)—and the various alternative administrative schemes that Congress has created for injuries suffered abroad. Moreover, by artificially excluding state officers, petitioners fail to give due
weight to the analogous Section 1983 regime. In combination, Congress’s actions demonstrate that it has given
“careful attention to conflicting policy considerations” in
this arena and the system it has adopted should not “be
augmented by the creation of a new judicial remedy.”
Bush, 462 U.S. at 388; see Schweiker, 487 U.S. at 423.
3. The presumption against extraterritoriality reinforces
the inappropriateness of extending Bivens to aliens
injured abroad
a. The presumption against extraterritoriality further confirms that Bivens should not be extended to aliens injured abroad. It is a basic principle of our legal
system that, in general, “United States law governs domestically but does not rule the world.” Kiobel v. Royal
Dutch Petroleum Co., 569 U.S. 108, 115 (2013) (citation
omitted). In statutory interpretation, that presumption
is reflected in the canon that “[w]hen a statute gives no
of State has not made a payment to petitioners (through Mexico)
under that statute.
27
clear indication of an extraterritorial application, it has
none.” Morrison v. National Austl. Bank Ltd., 561 U.S.
247, 255 (2010). That canon “helps ensure that the Judiciary does not erroneously adopt an interpretation of
U.S. law that carries foreign policy consequences not
clearly intended by the political branches.” Kiobel, 569
U.S. at 116.
This Court has made clear that “the principles underlying the canon of interpretation similarly constrain
courts” in recognizing common-law causes of action. Kiobel, 569 U.S. at 116. Indeed, the Court explained in Kiobel that “the danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the
context of the ATS, because the question is not what
Congress has done, but instead what courts may do.”
Ibid. (emphasis added). That danger is still greater in
the Bivens context, where courts are asked to create a
cause of action without even the minimal congressional
guidance found in the ATS.
After Kiobel, the Court clarified that the presumption against extraterritoriality “separately appl[ies]” to
a private damages remedy for injuries suffered abroad,
even if the underlying substantive rule has extraterritorial reach. RJR Nabisco, Inc. v. European Cmty.,
136 S. Ct. 2090, 2106 (2016); see id. at 2106-2108. In RJR
Nabisco, the Court thus concluded that a statutory private right of action did not reach injuries suffered
abroad—even injuries caused by domestic conduct, see
id. at 2105—because the statute did not “provide[] a
clear indication that Congress intended to create a private right of action for injuries suffered outside of the
United States,” id. at 2108. Under that reasoning, even
if Congress had enacted a statute expressly providing a
damages remedy for individuals whose constitutional
28
rights are violated by federal officers, this Court would
not extend that statutory remedy to this case absent a
“clear indication” that Congress intended to reach “injuries suffered outside of the United States.” Ibid. And
it would be “grossly anomalous * * * to apply Bivens
extraterritorially when [courts] would not apply an identical statutory cause of action for constitutional torts extraterritorially.” Meshal, 804 F.3d at 430 (Kavanaugh,
J., concurring).
b. Petitioners respond (Br. 31) that the presumption
against extraterritoriality should not apply because extending Bivens will not cause international discord in
this case. But the presumption applies “across the
board, regardless of whether there is a risk of conflict”
with other nations in a particular case, as confirmed by
the fact that the European Community was itself the
plaintiff in RJR Nabisco. 136 S. Ct. at 2100 (citation and
internal quotation marks omitted).
Petitioners next assert (Br. 31) that the presumption
does not apply to constitutional claims because “th[e]
Court is not acting as the agent of the legislature” when
it interprets the Constitution, unlike when it interprets
statutes. But in determining whether to extend a damages remedy for a constitutional violation, the Court is
indeed attempting to ascertain “the likely or probable
intent of Congress.” Abbasi, 137 S. Ct. at 1862. As Abbasi explained, the touchstone of the Court’s analysis is
thus whether “Congress might doubt the efficacy or necessity of a damages remedy.” Id. at 1858 (emphasis
added).
Finally, petitioners for the first time contend that the
presumption has been rebutted here because Agent
Mesa’s conduct sufficiently “touche[s] and concern[s]”
the United States. Pet. Br. 32 (quoting Kiobel, 569 U.S.
29
at 124-125). Even if the Court considers that new argument, RJR Nabisco establishes that when a cause of action focuses on a plaintiff ’s injury, the presumption applies to claims that “rest entirely on injury suffered
abroad.” 136 S. Ct. at 2111; see id. at 2105-2107. And
more generally, a “touch and concern” analysis would
require a case-specific inquiry into whether a particular
defendant’s conduct sufficiently involved the United
States. That sort of inquiry is incompatible with the categorical question whether this Court should extend a
non-statutory remedy to the class of potential claims
brought by aliens injured abroad.
D. The Purported Inadequacy Of Alternative Remedies
Cannot Justify Extending Bivens
1. Petitioners contend (Br. 34-38) that they have asserted “a core Bivens claim,” id. at 34, because they lack
adequate alternative remedies. That argument is both
legally and factually flawed.
Legally, this Court has made clear that while the
presence of an alternative remedy may preclude the extension of Bivens, the “absence of statutory relief for a
constitutional violation * * * does not by any means
necessarily imply that courts should award money damages against the officers responsible for the violation.”
Schweiker, 487 U.S. at 421-422 (emphasis added). Otherwise, courts would be forced to create remedies whenever Congress has specifically chosen not to do so. The
Court has therefore emphasized that “it is irrelevant to
a ‘special factors’ analysis whether the laws currently on
the books afford [the plaintiff ] * * * an ‘adequate’ federal remedy for his injuries.” Stanley, 483 U.S. at 683.
“[E]ven in the absence of an alternative,” a Bivens remedy is inappropriate if there are “ ‘any special factors
30
counselling hesitation.’ ” Wilkie, 551 U.S. at 550 (citation
omitted).
The Court has accordingly declined to extend Bivens
even when that leaves no “prospect of relief for injuries
that must now go unredressed.” Schweiker, 487 U.S. at
425. In Stanley, for example, the Court declined to extend Bivens to an Army veteran’s claim that he had been
secretly administered LSD as part of an Army experiment, even though he was also barred from bringing an
FTCA suit against the United States. 483 U.S. at 671672, 686. The Court explained that, if no alternative remedial scheme existed, “[t]he ‘special factor’ that ‘counsels hesitation’ is not the fact that Congress has chosen
to afford some manner of relief in the particular case,
but the fact that congressionally uninvited intrusion into
military affairs by the judiciary is inappropriate.” Id. at
683 (brackets omitted). Similarly here, if special factors
counsel hesitation, then the Court cannot extend Bivens,
regardless of what other relief may be available to petitioners.
Factually, petitioners exaggerate the lack of alternative remedies. State tort suits against an individual officer remain available where the officer acts outside the
scope of his employment. See Wilkie, 551 U.S. at 551553 (considering availability of potential tort suits).
Here, the Westfall Act protects Agent Mesa from state
tort suits only because DOJ certified that he was acting
within the scope of his employment. 28 U.S.C. 2679(b)
and (d). Such “scope-of-employment certification[s]
[are] reviewable in court,” Gutierrez de Martinez v.
Lamagno, 515 U.S. 417, 420 (1995). And although petitioners did not exercise their right to seek judicial review here, the certification process may allow claims to
go forward in “egregious[]” cases of employees acting
31
outside the scope of their employment. Vanderklok, 868
F.3d at 204; see, e.g., Jamison v. Wiley, 14 F.3d 222, 228235 (4th Cir. 1994) (no certification for employee who
sexually assaulted co-worker at work).
Forms of executive redress also remain available.
See Schweiker, 487 U.S. at 424 (considering availability
of administrative scheme). In particular, DOJ investigates allegations of excessive force by federal lawenforcement officers, including Border Patrol agents,
and may bring a federal criminal prosecution where appropriate. See United States v. Swartz, No. 15-CR-1723
Docket entry No. 659 (D. Ariz. Dec. 17, 2018) (prosecution of Border Patrol agent for murder, resulting in acquittal). A successful prosecution could result in an order providing restitution for the victim’s family. See 18
U.S.C. 3663A(a); United States v. Cienfuegos, 462 F.3d
1160, 1165-1169 (9th Cir. 2006). Other compensation,
such as administrative or ex gratia payments, may also
be available, depending on the circumstances of the case.
See pp. 24-26, supra.
Apart from compensation, several practical deterrents mitigate petitioners’ concerns (Br. 40) that, absent
Bivens liability, federal officers will “use unconstitutionally excessive force with impunity.” For example, U.S.
Border Patrol agents are subject to internal review and
discipline under regulations promulgated pursuant to a
specific congressional directive. See 8 U.S.C. 1357(a)(5);
8 C.F.R. 287.10. And CBP has revised its use-of-force
policy, redesigned its training curriculum, and instituted
a new procedure for reviewing incidents involving the
use of force. See CBP Releases Use of Force Policy
32
Handbook and Police Executive Research Forum Report (May 30, 2014) 7; CBP, Investigations into Deaths in
Custody and Use-of-Force Incidents (July 27, 2015). 8 On
the international front, too, the United States can be accountable to Mexico for federal officers’ conduct at the
border. And if concerns remain “that absent a Bivens
remedy there will be insufficient deterrence to prevent officers from violating the Constitution,” the high “stakes
on both sides of the argument” are for Congress to weigh.
Abbasi, 137 S. Ct. at 1863.
2. Petitioners additionally contend (Br. 40-42) that
the absence of a federal damages remedy would “raise[]
a serious constitutional question” about “whether the
Westfall Act violates the Due Process Clause,” id. at 40.
No court has ever suggested that the Westfall Act is unconstitutional, and this Court did not grant certiorari on
that question. Regardless, petitioners’ constitutionalavoidance argument fails.
Petitioners rely (Br. 42) on the statement in Webster
v. Doe, 486 U.S. 592 (1988), that a “serious constitutional
question * * * would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Id. at 603 (internal quotation marks
omitted). But the Westfall Act does not purport to foreclose judicial review of constitutional claims. It merely
preempts state tort suits with a specific type of remedy:
damages against federal officers acting within the scope
of their employment. See 28 U.S.C. 2679(b). In fact, it
7
https://www.cbp.gov/newsroom/national-media-release/cbpreleases-use-force-policy-handbook-and-police-executive-research.
8
https://www.dhs.gov/sites/default/files/publications/Customs%
20and%20Border%20Protection%20(CBP)%20-%20Investigations
%20into%20Deaths%20in%20Custody%20and%20Use-of-Force%20
Incidents.pdf.
33
expressly excludes constitutional claims (to the extent
they are otherwise available) from its substitution provisions. 28 U.S.C. 2679(b)(2)(A). If petitioners are unable to bring a constitutional claim, it is not because the
Westfall Act has closed the courthouse doors; it is because Congress has declined to create the constitutional
damages action they desire.
Petitioners more broadly suggest (Br. 41) that the
combination of the Westfall Act’s preemption of state
tort suits and Congress’s decision not to create a constitutional damages action raises serious constitutional
doubts. But petitioners cite no authority for the proposition that, although Congress may permissibly take
each of those actions, it may not do both. Instead, petitioners invoke the general principle “that where there is
a legal right, there is also a legal remedy.” Ibid. (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163
(1803)). As they acknowledge (ibid.), however, that principle is far from absolute. For example, traditional immunity doctrines illustrate that the Constitution does
not guarantee a remedy when a governmental official violates an individual’s constitutional rights, as those doctrines preclude recovery for certain constitutional violations. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 427
(1976) (applying absolute immunity and acknowledging
that it “leave[s] the genuinely wronged defendant without civil redress against a prosecutor whose malicious or
dishonest action deprives him of liberty”). The Bivens
context is no different: Even if petitioners have Fourth
and Fifth Amendment rights and those rights were violated, a damages remedy “is not an automatic entitlement no matter what other means there may be to vindicate a protected interest.” Wilkie, 551 U.S. at 550;
34
accord Schweiker, 487 U.S. at 421-422, 428; Stanley,
483 U.S. at 683.
Indeed, petitioners’ constitutional-avoidance theory
would have the opposite effect of creating constitutional
doubt: It would require this Court to extend Bivens to
precisely those circumstances where Congress has foreclosed liability against the United States under the
FTCA. Petitioners lack an “alternative federal legal
remedy” (Br. 41) for the alleged constitutional violation
here in part because Congress has specifically barred
FTCA liability for claims “arising in a foreign country.”
28 U.S.C. 2680(k); see Pet. Br. 20. Accordingly, under
their constitutional-avoidance theory, the Court would
be forced to extend Bivens to areas where Congress has
expressly determined that governmental liability would
be inappropriate. That result would exacerbate the existing separation-of-powers concerns about judicially
created damages actions. See Abbasi, 137 S. Ct. at 1856.
The Court should not take that constitutionally dubious
step here.
35
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
MORGAN L. RATNER
Assistant to the Solicitor
General
MARK B. STERN
KATHERINE TWOMEY ALLEN
THAIS-LYN TRAYER
MARY HAMPTON MASON
SIEGMUND F. FUCHS
Attorneys
SEPTEMBER 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.