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Bivens action; whether to extend the Bivens doctrine; separation of powers

by | Mar 4, 2020 | Business Litigation

Hernandez v. Mesa, ___ U.S. ___, No. 17-1678 (25 February 2020)

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court held that a person claiming to be the victim of an unlawful arrest and search could bring a 4th Amendment claim for damages against the law enforcement officers even though no federal statute authorized such cause of action.   The Court subsequently extended Bivens to cover a 5th Amendment claim of sex discrimination, Davis v. Passman, 442 U. S. 228 (1979), and a federal prisoner’s 8th Amendment claim for inadequate medical treatment. Carlson v. Green, 446 U. S. 14 (1980).  Those cases were products of an era when the Court was inclined to infer “causes of action” that were “not explicit” in the text of the law that was allegedly violated.  In recent years the Court has questioned whether Bivens violates separation of powers and has declined to extend Bivens to other types of allegations and other circumstances. Ziglar v. Abbasi, 582 U. S. ___ (2017).  In the instant case, the petitioners asked the Court to extend Bivens and to create a damages remedy for a cross-border shooting by a federal law enforcement officer.  The Court refused to do so.

The facts of the case are tragic.  Sergio Hernandez was a 15-year old Mexican.  He was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico.  The border runs through the center of the culvert.  The petitioners, Hernandez’s parents, contend that the teenagers were playing a game by running from Mexico and across the border to the fence on the U.S. side.  Agent Mesa contends that they were attempting an illegal border-crossing and that they pelted him with rocks.  Agent Mesa apprehended one of the teenagers on the U.S. side, and when Hernandez ran back to the Mexican side, Agent Mesa fired two shots from the U.S. side and killed Hernandez who was on the Mexican side of the border.  Hernandez’s parents sued in federal court, the district court granted Agent Mesa’s motion to dismiss, and the 5th Circuit affirmed, sitting en banc.  

The Supreme Court said that when a court recognizes an implied claim for damages on the ground that doing so furthers the purpose of the law, the court risks arrogating legislative power.  There is no federal, general, common law, and federal courts are not common law courts that can fashion new causes of action and new remedies.  Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).  A federal court’s authority to recognize a damages remedy must rest on a statute enacted by Congress, and no statute expressly creates a Bivens remedy for money damages against individual law enforcement officers.   When asked to extend Bivens, the Court uses a two-step inquiry.  The first step is whether the claim arises in a “new context” or involves a “new category of defendants, and the Court’s understanding of a new context is broad.  The Court considers the context to be new if it is different in a meaningful way from previous Bivens cases decided by the Court.  The second step is whether there are any special factors counseling hesitation about granting an extension.  If the Court has reason to pause before applying Bivens in a new context, then the Court refuses to extend the Bivens doctrine.  Separation-of-powers principles are central to the analysis.  

The Court held that in the instant case the Bivens claim clearly arose in a new context markedly different than the claims in Bivens, Passman, and Carlson, none of which concerned a cross-border shooting.  There are also factors counseling hesitation.  A cross-border shooting is by definition an international incident.  The petitioners’ cross-border shooting claims have the potential to effect foreign relations and national security.  These are matters best left to the political branches.  In addition, Congress has declined to authorize the award of damages for injury inflicted outside our borders.  For example, damages under 42 U.S.C. §1983 are available only to persons within the jurisdiction of the United States.  Another example is the Federal Tort Claims Act, which is the exclusive remedy for most claims against government employees arising out of their official conduct and which bars claims arising in a foreign country.  When evaluating whether to extend Bivens, the most important question is who should decide whether to provide for a damages remedy, Congress or the courts.  The correct answer will most often be Congress, and that is the correct answer in this case.

Justice Thomas, joined by Justice Gorsuch, filed a concurring opinion asserting that the Court should discard the Bivens doctrine altogether.  Justice Ginsburg filed a dissenting opinion, joined by Justices Breyer, Sotomayor and Kagan, contending that this case is within the scope of Bivens and does not present a new context.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at [email protected].