Supreme Court Again Considering Bivens Viability In Cross-Border Shooting Case

The U.S. Supreme Court is set to decide Hernandez v. Mesa for a second time.

As FEDagent previously reported in 2017, when the Supreme Court first heard Hernandez in 2010, U.S. Border Patrol officer Jesus Mesa, standing in the United States, shot and killed Sergio Hernandez on the Mexican side of the U.S.-Mexico border. Hernandez’s family subsequently filed a Bivens suit against Mesa in federal court in Texas, arguing that Mesa was personally liable for violating Hernandez’s constitutional rights. When the Supreme Court first heard the family’s case in 2017, it remanded the cases back to the U.S. Court of Appeals for the Fifth Circuit for that appeals court to decide whether the case could proceed in light of the Supreme Court’s decision that term in Ziglar v. Abbasi, which instructed lower courts how to evaluate Bivens availability.

On remand, the Fifth Circuit ruled that the Hernandez family’s case could not proceed as a Bivens action because to do so, the court would need to extend Bivens to a “new context” because it was not clear whether the Constitution applies to a foreign citizen on foreign soil. The family then petitioned the Supreme Court to decide the issue. The justices accepted the case, invited the Solicitor General to file a brief in the case, and heard oral argument from both parties and the United States earlier this week.

The attorney for the Hernandez family, Stephen Vladeck, opened argument with the premise that all agree a Bivens suit against Mesa could proceed had Sergio Hernandez been standing on the U.S. side of the border when he was shot. Vladeck then argued the soil on which Hernandez stood should not affect whether a Bivens case could proceed, especially given the lack of any other remedy available to the family.

Chief Justice John Roberts was skeptical of Vladeck’s argument, noting Bivens was decided almost 50 years ago and it has been 40 years since the Supreme Court had extended Bivens to any new context. The Chief Justice also observed that allowing the family’s case to proceed could interfere in international relations should the courts reach different factual conclusions than those represented by the Executive Branch of the United States to Mexico. “I thought the country was supposed to speak with one voice,” he said.

Justice Brett Kavanaugh commented that if Bivens were a statute, it would presumptively not apply outside the United States and therefore not apply to the family’s case. Vladeck argued the family’s case would still be different because Mesa was in the United States when he shot Hernandez. Justice Neil Gorsuch then expressed concern that, were the Court to accept the family’s argument, Bivens could be extended to allow suit by any foreign national injured overseas against officials in the United States.

Justices also peppered the attorney for Mesa, Randolph Ortega, and for the United States, Principal Deputy Solicitor General Jeffrey Wall. Justice Elena Kagan asked Wall to explain the government’s international relations concerns. As part of the exchange, Wall said disagreement between the Executive and the Judiciary would “directly undermine the credibility of the Executive Branch in working with a foreign government.”

Responding to a question from Justice Stephen Breyer, Ortega agreed the Hernandez family’s case could proceed had Sergio Hernandez been on U.S. soil or been an American on Mexican soil when Mesa shot him. Justice Kavanaugh soon joined the dialogue, wondering why the Court should consider foreign policy implications in the family’s case, if similar implications of a Mexican national killed on the U.S. side of the border did not preclude a Bivens suit in that context.

FEDagent will report on the Supreme Court’s decision in Hernandez v. Mesa, expected in 2020. Click to review all Supreme Court filings in Hernandez v. Mesa.


This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

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