Response to petition from respondent Jesus Mesa, Jr. — Jesus C. Hernández, et al., Petitioners v. Jesus Mesa, Jr.

No. 17-1678

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------JESUS C. HERNANDEZ, ET AL.,

Petitioners,

v.

JESUS MESA, JR.,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

-----------------------------------------------------------------RESPONSE TO PETITION

FOR WRIT OF CERTIORARI

-----------------------------------------------------------------RANDOLPH J. ORTEGA

Counsel of Record

ORTEGA MCGLASHAN HICKS

& PEREZ

609 Myrtle

El Paso, TX 79901

Tel. (915) 542-1883

randyortega@omhplaw.com

LOUIS ELIAS LOPEZ, JR.

416 N. Stanton, Ste. 400

El Paso, TX 79901

Tel. (915) 543-9800

llopez@lelopezlaw.com

GABRIEL PEREZ

ORTEGA MCGLASHAN HICKS

& PEREZ

609 Myrtle

El Paso, TX 79901

Tel. (915) 542-1883

gabrielperez@omhplaw.com

Counsel for Respondent

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

STATEMENT OF THE CASE..............................

1

REASONS FOR DENYING THE PETITION ......

1

I.

II.

THE FIFTH CIRCUIT’S INTERPRETATION OF ABBASI REGARDING A BIVENS

CLAIM IN THIS CAUSE IS CORRECT

AND DOES NOT NEED TO BE CLARIFIED ..........................................................

1

THE PETITIONER’S WESTFALL ANALYSIS IS INCORRECT .................................. 11

CONCLUSION..................................................... 16

ii

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct.

1511, 149 L.Ed.2d 517 (2001) ...................................3

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,

173 L.Ed.2d 868 (2009) .............................................3

Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.

1999, 29 L.Ed.2d 619 (1971) ........................... passim

Boumediene v. Bush, 553 U.S. 723, 128 S.Ct.

2229, 171 L.Ed.2d 41 (2008) ................................. 7, 8

Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76

L.Ed.2d 648 (1983) ....................................................4

Cannon v. Univ. of Chi., 441 U.S. 677, 99 S.Ct.

1946, 60 L.Ed.2d 560 (1979) .....................................3

Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64

L.Ed.2d 15 (1980) .................................................. 2, 5

Chappell v. Wallace, 462 U.S. 296, 103 S.Ct.

2362, 76 L.Ed.2d 586 (1983) ................................. 4, 5

Correctional Services Corp. v. Malesko, 534 U.S.

61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) ........... 4, 5

Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264,

60 L.Ed.2d 846 (1979) ........................................... 2, 5

Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012) ..........10

FDIC v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127

L.Ed.2d 308 (1994) ....................................................4

Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865,

104 L.Ed.2d 443 (1989) .............................................7

iii

TABLE OF AUTHORITIES – Continued

Page

Harbury v. Hayden, 522 F.3d 413 (D.C. Cir. 2008)........ 13

Hernandez v. Mesa, ___ U.S. ___, 137 S.Ct. 2003,

198 L.Ed.2d 625 (2017) ................................... passim

Hernandez v. Mesa, 885 F.3d 811 (5th Cir.

2018) ................................................................ passim

J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct.

1555, 12 L.Ed.2d 423 (1964) .....................................3

Leaf v. United States, 588 F.2d 733 (9th Cir.

1978) ........................................................................15

Minneci v. Pollard, 565 U.S. 118, 132 S.Ct. 617,

181 L.Ed.2d 606 (2012) .............................................4

Sami v. United States, 617 F.2d 755 (D.C. Cir.

1979) ........................................................................14

Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct.

2460, 101 L.Ed.2d 370 (1988) ...................................4

Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct.

2739, 159 L.Ed.2d 718 (2004) ........................... 14, 15

United States v. Delgado–Garcia, 374 F.3d 1337

(D.C. Cir. 2004) ........................................................10

United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10,

94 L.Ed. 3 (1949) .....................................................14

United States v. Stanley, 483 U.S. 669, 107 S.Ct.

3054, 97 L.Ed.2d 550 (1987) .....................................4

United States v. Verdugo–Urquidez, 494 U.S.

259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) ....... 6, 7

Vanderklok v. United States, 868 F.3d 189 (3d

Cir. 2017) .................................................................11

iv

TABLE OF AUTHORITIES – Continued

Page

Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588,

168 L.Ed.2d 389 (2007) .............................................4

Ziglar v. Abbasi, ___ U.S. ___, 137 S.Ct. 1843, 198

L.Ed.2d 290 (2017) .......................................... passim

UNITED STATES CONSTITUTION

Art. I, § 9, cl. 2, the Habeas Corpus Suspension

Clause ........................................................................7

Article III ......................................................................9

First Amendment..........................................................4

Fourth Amendment .......................................... 2, 5, 6, 7

Fifth Amendment ............................................... passim

Eighth Amendment .............................................. 2, 4, 5

STATUTES

6 U.S.C. § 211(e)(3)(B) .................................................10

28 U.S.C. Chapter 171 et seq. .....................................12

28 U.S.C. § 2672 ..........................................................12

28 U.S.C. § 2679 ..........................................................12

28 U.S.C. § 2679(b)(1) .................................................12

28 U.S.C. § 2679(b)(2) .................................................12

28 U.S.C. § 2680 ..........................................................12

28 U.S.C. § 2680(k) ......................................................13

v

TABLE OF AUTHORITIES – Continued

Page

28 U.S.C. § 2870(k) ......................................................15

42 U.S.C. § 1983 ............................................................2

OTHER

Federal Tort Claims Act .............................................12

Westfall Act ........................................................... 12, 14

Hearings on H.R. 5373 et al. before the House

Committee on the Judiciary, 77th Cong., 2d

Sess., 35 (1942) ........................................................13

1

STATEMENT OF THE CASE

Petitioners allege that on June 7, 2010, their

fifteen-year-old son, Sergio Adrián Hernandez Güerca

(“Hernandez”), a citizen and resident of Mexico, was

playing with his friends at the border area near the

Paso del Norte Bridge in El Paso, Texas. Jesus C. Hernandez, et al. v. the United States of America, et al.,

2012 WL 4783845. According to the Petitioners, the

boys were playing a game which involved running up

and touching the border fence and then running back

down the incline of the culvert into Mexico. Id. United

States Border Patrol Agent Jesus Mesa, Jr. arrived at

the scene and detained one of the individuals. Id. Hernandez retreated under the Paso del Norte Bridge in

Mexico. Id. Petitioners allege that Agent Mesa, while

standing in the United States, then pointed his service

weapon at Hernandez and shot across the border at

least twice. Id. Hernandez was shot at least once and

subsequently died. Id.

------------------------------------------------------------------

REASONS FOR DENYING THE PETITION

I.

THE FIFTH CIRCUIT’S INTERPRETATION OF ABBASI REGARDING A BIVENS

CLAIM IN THIS CAUSE IS CORRECT AND

DOES NOT NEED TO BE CLARIFIED.

Upon receiving this cause on remand, the United

States Fifth Circuit Court of Appeals reviewed the

facts of this case, in light of Ziglar v. Abbasi, ___ U.S.

___, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017), and held

that the Abbasi decision shuts the door on the

2

petitioner’s claim. Hernandez v. Mesa, 885 F.3d 811

(5th Cir. 2018).

Circuit Judge Edith Jones, writing for the court in

the remanded Hernandez, opened the opinion by explaining that “when Congress passed what is now 42

U.S.C. § 1983 in 1871, [Congress] enacted no comparable law authorizing damage suits in federal court to

remedy constitutional violations by federal government agents.” Id. at 815.

Judge Jones went on to write that beginning in

1971, the Supreme Court of the United States, in

Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d

619 (1971), “broke new ground by allowing suits that

made constitutional claims against the federal government and its entities.” Hernandez, 885 F.3d at 815.

Bivens began with a Fourth Amendment violation

against federal law enforcement officers when searching a home. Id. Soon after Bivens, the Court then approved a Fifth Amendment equal protection claim

against a United States Congressman for employment

discrimination violations. Davis v. Passman, 442 U.S.

228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). And then

right after Passman, the Court expanded Bivens recognizing an Eighth Amendment claim against federal

jailers for inadequate inmate medical care. Carlson v.

Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15

(1980).

Upon re-examining this judicially created exception, Justice Kennedy writing the Court’s opinion in

3

Abbasi recognized that Bivens and its progeny coincided during a time when the Court followed a different approach to recognizing implied causes of action

than it follows now. Abbasi, 137 S.Ct. at 1855. During

this “ancient regime,” the Court followed a different

approach to recognizing implied causes of action than

it follows now. Justice Kennedy wrote that during the

mid-20th century, the Court felt that it was a proper

judicial function to “provide such remedies as are necessary to make effective” a statute’s purpose. Abbasi,

137 S.Ct. at 1855. Thus, as a routine matter with respect to statutes, the Court would imply causes of action not explicit in the statutory text itself. See, e.g., J.I.

Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 12

L.Ed.2d 423 (1964).

However, beginning in the late 1970’s, the Court

began to move away from the “old regime’s” judicially

implied causes of action 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, 60 L.Ed.2d 560

(1979); see, e.g., Alexander v. Sandoval, 532 U.S. 275,

287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (private

rights of action to enforce federal law must be created

by Congress).

Thus, as of late, the Court makes it clear that expanding the Bivens remedy is now a “disfavored” judicial activity. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.

1937, 173 L.Ed.2d 868 (2009). This is in concurrence

with the fact that the Court refused to extend Bivens

4

to any new context or new category of defendants during the past 30 years. Abbasi, 137 S.Ct. at 1856; see also

Correctional Services Corp. v. Malesko, 534 U.S. 61, 68,

122 S.Ct. 515, 151 L.Ed.2d 456 (2001).

So far, the Court has decided against creating a

First Amendment suit against a federal employer,

Bush v. Lucas, 462 U.S. 367, 390, 103 S.Ct. 2404, 76

L.Ed.2d 648 (1983); a race-discrimination suit against

military officers, Chappell v. Wallace, 462 U.S. 296, 297,

304–305, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); a substantive due process suit against military officers,

United States v. Stanley, 483 U.S. 669, 671–672, 683–

684, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987); a procedural due process suit against Social Security officials,

Schweiker v. Chilicky, 487 U.S. 412, 414, 108 S.Ct. 2460,

101 L.Ed.2d 370 (1988); a procedural due process suit

against a federal agency for wrongful termination,

FDIC v. Meyer, 510 U.S. 471, 473–474, 114 S.Ct. 996,

127 L.Ed.2d 308 (1994); an Eighth Amendment suit

against a private prison operator, Correctional Services

Corp. v. Malesko, 534 U.S. 61, 68, 122 S.Ct. 515, 151

L.Ed.2d 456 (2001); a due process suit against officials

from the Bureau of Land Management, Wilkie v. Robbins, 551 U.S. 537, 547–548, 562, 127 S.Ct. 2588, 168

L.Ed.2d 389 (2007); and an Eighth Amendment suit

against prison guards at a private prison, Minneci v.

Pollard, 565 U.S. 118, 120, 132 S.Ct. 617, 181 L.Ed.2d

606 (2012).

So when a party “seeks to assert an implied

cause of action under the Constitution itself,” Justice

Kennedy wrote, “just as when a party seeks to assert

5

an implied cause of action under a federal statute,

separation-of-powers principles are or should be central to the analysis.” Abbasi, 137 S.Ct. at 1856. Ultimately, the question as to who should decide whether

to provide for a damages remedy, Congress or the

courts, the answer most often should be Congress. Id.

at 1857. But even if we are to apply Bivens to our case,

taking into account Abbasi’s ruling, there is still an

“exacting” two-part analysis for implying Bivens

claims. Hernandez, 885 F.3d at 816.

Circuit Judge Jones in Hernandez begins by analyzing the Petitioners’ first claim that the “unprovoked

shooting of a civilian by a federal police officer is a prototypical excessive force claim, presents no ‘new context’ under Bivens.” Hernandez, 885 F.3d at 816.

Disagreeing, Circuit Judge Jones writes that “the fact

that Bivens derived from an unconstitutional search

and seizure claim is not determinative.” Id. She states

that even though the detainees in Abbasi asserted

claims for strip searches under both the Fourth and

Fifth Amendments, the Supreme Court found a “new

context” despite similarities between “the right and

the mechanism of injury” involved in previous successful Bivens claims. Id.; Abbasi, 137 S.Ct. at 1859. As Abbasi points out, she states, “the Malesko case rejected

a ‘new’ Bivens claim under the Eighth Amendment,

whereas an Eighth Amendment Bivens claim was held

cognizable in Carlson;” and Chappell rejected a Bivens

employment discrimination claim in the military,

although such a claim was allowed to proceed in Davis

v. Passman. Judge Jones asserts that the proper

6

inquiry is whether “the case is different in a meaningful way” from prior Bivens cases. Abbasi, 137 S.Ct. at

1859.

Citing Justice Kennedy’s opinion in Abbasi,

“[a]mong the non-exclusive examples of such meaningful differences,” Judge Jones writes, “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.” Hernandez, 885 F.3d at 816; citing Abbasi,

137 S.Ct. at 1860–1861.

Pursuant to Abbasi, our case analysis is simple. As

the Fifth Circuit found, the cross-border shooting at issue here must present a “new context” for a Bivens

claim. Id. at 817. 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. Id. There has been no direct judicial

guidance concerning the extraterritorial scope of the

Constitution and its potential application to foreign

citizens on foreign soil. Id.

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, 108 L.Ed.2d 222 (1990). Language in

Verdugo’s majority opinion strongly suggests that the

7

Fourth Amendment does not apply to American officers’ actions outside of this country’s borders. Hernandez, 885 F.3d at 817; see also Verdugo–Urquidez, 494

U.S. at 274–275, 110 S.Ct. at 1066. In Hernandez, the

Court itself described the Petitioners’ Fourth Amendment claims as raising “sensitive issues.” Id.; Hernandez v. Mesa, ___ U.S. ___, 137 S.Ct. 2003, 2007, 198

L.Ed.2d 625 (2017).

Now, Judge Jones wrote, the Petitioners could prevail on a substantive due process Fifth Amendment

claim but only if the federal courts accept two novel

theories. Id. First, the federal courts 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 this first theory already is a non-starter because the courts have already recognized that all

claims alleging excessive force by law enforcement officers during 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. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct.

1865, 1871, 104 L.Ed.2d 443 (1989).

The second theory, according to Judge Jones,

would require the extension of the Boumediene decision, 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 v. Bush, 553 U.S.

8

723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (“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.”).

Moreover, Judge Jones writes, “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.”

Hernandez, 885 F.3d at 817. Unfortunately, the courts

have already unanimously rejected such extensions.

Id.

Now, assume for argument’s sake that the Petitioners’ assertation, that this is a case in which one

rogue law enforcement officer engaged in misconduct

on the operational level, 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. Id. at 818.

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. Id.

According to the Fifth Circuit’s opinion, the newness of this “new context” should alone require dismissal of the Petitioners’ damage claims. Id.

In their brief, the Petitioners argue that this case

involves no “special factors” and no reasons, and the

court should hesitate before extending Bivens. Id. But

9

no matter how remarkable this position may seem, “it

is unremarkable that the Petitioners hold it—they

must.” Id. Unfortunately for the Petitioners, the presence of “special factors” precludes a Bivens extension.

Id. Given Abbasi’s explanation of the “special factors”,

there is more than enough reason for this Court to stay

its hand and deny the extraordinary remedy that the

Petitioners seek. Id.

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.” Id.; Abbasi, 137

S.Ct. at 1857. Underscoring the Court’s steady retreat

from the mid-20th century’s expansion of Bivens, the

Abbasi opinion instructs the lower 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 1857–1858. In

light of this guidance, the question for this Court is not

whether this case is distinguishable from Abbasi itself,

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.

Hernandez, 885 F.3d at 818. To begin with, this

10

extension of Bivens threatens the political branches’

supervision of national security. Id. “The Supreme

Court has never implied a Bivens remedy in a case involving the military, national security, or intelligence.”

Id. at 819; see Doe v. Rumsfeld, 683 F.3d 390, 394 (D.C.

Cir. 2012).

In Abbasi, the Court stressed that “[n]ationalsecurity policy is the prerogative of the Congress and

the President.” Abbasi, 137 S.Ct. at 1861. The Petitioners 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.

Of course, the defining characteristic of this case

is that it is not domestic. Hernandez, 885 F.3d at 819.

As Judge Jones stated, “National-security concerns are

hardly ‘talismanic’ where, as here, border security is at

issue.” Id.; 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.”).

The threat of Bivens liability will undermine the

Border Patrol’s ability to perform duties essential to

national security. Hernandez, 885 F.3d at 819. Congress has expressly charged the Border Patrol with

“deter[ring] and prevent[ing] the illegal entry of terrorists, terrorist weapons, persons, and contraband.” Id.;

6 U.S.C. § 211(e)(3)(B). Although members of the

11

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. Id.

Judge Jones also pointed out a similar context—

airport security—where 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 in that 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—could indeed increase the

probability that a TSA agent would hesitate in making

split-second decisions about suspicious passengers. Id.

In light of Supreme Court precedent, past and very recent, that is surely a special factor that gives us pause.

Id. The same logic applies here. 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.” Id.

Considering the “systemwide” impact of this Bivens extension, there are “sound reasons to think Congress

might doubt its efficacy.” Id.; Abbasi, 137 S.Ct. at 1858.

II.

THE PETITIONER’S WESTFALL ANALYSIS IS INCORRECT.

Congress specifically created a statutory schema

for the redress of wrongs committed by federal

12

employees while acting within the course and scope of

their employment. When drafting the Westfall Act, codified in 28 U.S.C. § 2679, as enacted as an amendment

to the Federal Tort Claims Act, the directives contained

within paragraph (b)(1) of section 2679 clearly specify

the remedies available for those seeking compensation

for potential claims. See 28 U.S.C. Chapter 171 et seq.

Section 2672 provides for an administrative option for

claimants, and section 2679 provides, among other

things, for the Constitutional claims that may lead to

rise under Bivens. See 28 U.S.C. §§ 2672, 2679(b)(2).

The Westfall Act, entitled “Exclusiveness of Remedy”, does not violate the Due Process protections contained within the Fifth Amendment. Pet. Cert. at 23.

In fact, the Westfall Act is non-violative of the Fifth

Amendment, due to the available remedies for tort

claims by a federal officer acting within the course and

scope of his or her employment. The preemption of

state tort claims is intended to ensure consistent and

fair adjudications of federal claims.

Petitioners’ claim that the preemption of state tort

claims by the Westfall Act, based upon the same or

similar factual bases for which a Bivens claim is

sought, violates the Due Process clause in the Fifth

Amendment. Petitioners’ assertion is founded on case

law cited; and in the last sentence found in section

(b)(1) which states that “precluded without regard to

when the act or omission occurred.” See 28 U.S.C.

§ 2679(b)(1). Petitioners ignore the fact that the exemptions found in section 2680 clearly prohibits actions arising in foreign countries. See 28 U.S.C.

13

§ 2680(k). The exclusion of claims arising in a “foreign

country” clearly demonstrates Congressional intent

to avoid questions of foreign sovereignty and diplomacy.

As early as 1942, the “foreign situs issue” appeared to be a concern for Congress. And in the hearings leading to an early draft of the Federal Tort

Claims Act, the following comment was made: “[I]t is

wise to restrict the bill to claims arising in this country.

This seems desirable because the law of the State is

being applied. Otherwise, it will lead I think to a good

deal of difficulty.” Hearings on H.R. 5373 et al. before

the House Committee on the Judiciary, 77th Cong., 2d

Sess., 35 (1942). And the majority of cases similarly situated to the immediate case involve foreign actors or

petitioners in some capacity.

In Harbury v. Hayden, the Court of Appeals for the

District of Columbia addressed the issue of state tort

claims remaining against the employees of the Central

Intelligence Agency (CIA), and held that: a) the political question doctrine preempted any state law claim

against the federal employees; and b) the foreign country exception applied given that the alleged harm occurred abroad to the petitioners. See Harbury v.

Hayden, 522 F.3d 413, 423 (D.C. Cir. 2008) (widow of

Guatemalan rebel fighter allegedly tortured and killed

in that country by persons working for the CIA brought

action against the CIA, Department of State, National

Security Council (NSC), and numerous named individual federal government employees, alleging various

claims arising under international law and common

14

law). State courts are not the venue to be deciding federal questions, nor are they equipped to do so. Even in

the event that the aggrieved party is a United States’

citizen, the proposition of applying fifty different bodies of substantive law is an untenable one.

By exposing the federal government to a myriad of

state tort claims in every jurisdiction, the risk of fifty

distinct outcomes is a very real possibility. This possibility becomes almost a probability given the differences in state tort law, immunity, and the application

of case law, not to mention the disregard for the existing stare decisis that controls the adjudication of similar claims. A prime example is contained within this

Court’s decision in Sosa v. Alvarez-Machain, wherein

the dismissal of a Mexican National’s constitutional

claims of abduction at the direction of the Drug Enforcement Agency (DEA) were addressed. Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004). In holding that

the Westfall Act’s exception found in section 2680(k)

prohibited the claim given that the alleged actions took

place in the Republic of Mexico, this Court wrote that

the immediate section “codified Congress’s unwilling[ness] to subject the United States to liabilities depending upon the laws of a foreign power.” Sosa v.

Alvarez-Machain, 542 U.S. 692, 707, 124 S.Ct. 2739,

2752, 159 L.Ed.2d 718 (2004), citing United States v.

Spelar, 338 U.S. 217, 221, 70 S.Ct. 10, 94 L.Ed. 3 (1949).

See also Sami v. United States, 617 F.2d 755, 762 (D.C.

Cir. 1979) (noting Spelar’s explanation but attempting

to recast the object behind the foreign country

15

exception); Leaf v. United States, 588 F.2d 733, 736, n.

3 (9th Cir. 1978).

Of particular note is the following statement addressing this Court’s rejection of the “headquarters

rule”: “The idea that Congress would have intended

any such jurisdictional variety is too implausible to

drive the analysis to the point of grafting even a selective headquarters exception onto the foreign country

exception itself.” Sosa v. Alvarez-Machain, 542 U.S.

692, 711–712, 124 S.Ct. 2739, 2754, 159 L.Ed.2d 718

(2004). Clearly, the desire for consistent outcomes is a

prime factor for the foreign country exception contained within section 2870(k).

The absence of an alternative claim in the instant

immediate case is not due to a violation of the Fifth

Amendment; the lack of a federal cause of action lies

in the international issue presented in the alleged

harm occurring in the Republic of Mexico. For the foregoing reasons, Respondent respectfully disagrees with

the premise contained within Petitioner’s petition requesting this Court’s review.

------------------------------------------------------------------

16

CONCLUSION

The petition for certiorari should not be granted.

Respectfully submitted,

RANDOLPH J. ORTEGA

Counsel of Record

ORTEGA MCGLASHAN HICKS

& PEREZ

609 Myrtle

El Paso, TX 79901

Tel. (915) 542-1883

randyortega@omhplaw.com

GABRIEL PEREZ

ORTEGA MCGLASHAN HICKS

& PEREZ

609 Myrtle

El Paso, TX 79901

Tel. (915) 542-1883

gabrielperez@omhplaw.com

LOUIS ELIAS LOPEZ, JR.

416 N. Stanton, Ste. 400

El Paso, TX 79901

Tel. (915) 543-9800

llopez@lelopezlaw.com

Counsel for Respondent

August 6, 2018