Hernandez v. Mesa

LII note: the oral arguments in Hernandez v. Mesa are now available from Oyez. The U.S. Supreme Court has now decided Hernandez v. Mesa .


Absent a statutory provision and alternative legal remedy, can private individuals seek damages against federal officers whose conduct allegedly violated the Fourth and Fifth Amendments?

Oral argument: 
November 12, 2019

This case asks the Supreme Court to determine whether damages claims filed by private individuals against federal officers merit a judicial tort remedy, absent any other legal remedies. The parents of Sergio Adrian Hernandez Guereca—who was fatally shot on Mexican soil by a U.S. officer on U.S. soil—sued the U.S. officer, other unknown federal employees, and the United States. They argue that under Bivens, their damages claims should proceed despite the lack of statutory provisions because the essence of their claims is the same as Bivens and because no other legal remedy is available. Jesus Mesa, Jr., the Border Patrol agent who shot and killed Sergio, contends that the parents’ claims should be dismissed because the claims fall outside of Bivens given the “new context” they present and the “special factors” that warrant the Court’s caution in recognizing a Bivens action in this case. The outcome of this case has heavy implications for national security, separation of powers, and accountability of agents employing deadly force in foreign territories.

Questions as Framed for the Court by the Parties 

Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damage claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.


On June 7, 2010, Sergio Adrian Hernandez Guereca (“Sergio”), a 15-year-old Mexican citizen, was playing a game with his friends at a cement culvert on the border between Ciudad Juarez, Mexico and El Paso, Texas. The game involved running up the culvert to touch the fence that separates Mexico and the United States and then running back down. Agent Jesus Mesa, Jr. (“Mesa”), a Border Patrol agent, arrived and detained one of Sergio’s friends. Id. Sergio retreated behind a pillar on the Mexican side of the culvert. From the United States’ side of the border, Mesa then fired two shots at Sergio, one of which fatally struck him in the head.

After the shooting, Sergio’s parents (“Hernandez”) sued in the United States District Court for the Western District of Texas (the “District Court”), bringing eleven claims in a federal lawsuit against Mesa, other unknown federal employees, and the United States. The first seven claims were brought under the Federal Tort Claims Act (“FTCA”). The next two claims asserted violations of Sergio’s Fourth and Fifth Amendment rights by the United States and unknown federal employees. The tenth claim asserted that Mesa violated Sergio’s Fourth and Fifth Amendment rights and thus, was liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. The final claim was brought under the Alien Tort Statute (“ATS”).

The United States moved to dismiss all the claims against it. The District Court determined that under the Westfall Act, the United States was the only proper defendant for the tort claims since Mesa was acting within his duties of employment. The District Court then granted the motion to dismiss because the United States had not waived sovereign immunity. Mesa moved to dismiss the claims against him based on qualified immunity and argued that Sergio lacked Fourth and Fifth Amendment rights because he was “an alien injured outside the United States.” The District Court again granted Mesa’s motion to dismiss.

On appeal, the United States Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) affirmed the District Court’s judgment in favor of the United States and the other unknown federal employees. However, the Fifth Circuit held that Hernandez’s Fifth Amendment claim against Mesa could proceed, and therefore, the Fifth Circuit reversed the District Court’s judgment regarding Mesa. The Fifth Circuit later decided to rehear the appeal en banc and determined that the Fourth Amendment claim failed on the merits, and without ruling on whether the court had jurisdiction to review a Bivens action, the Fifth Circuit held that Mesa was shielded from any Fifth Amendment claims by qualified immunity. The Fifth Circuit then rejected the rest of the remaining claims.

The Supreme Court of the United States granted certiorari on the case and heard it in conjunction with Ziglar v. Abbasi in 2017. The Supreme Court rejected the Fifth Circuit’s approach and remanded the case to the Fifth Circuit to consider whether a Bivens claim could proceed based on the “special factors” analysis applied in Abbasi, where the Court held that special factors counseled against extending a Bivens action against officials in detentions of terror suspects after 9/11. On remand, the Fifth Circuit held that the case presented a new Bivens context and that its “special factors” counseled against applying Bivens to this case. This time, the Fifth Circuit affirmed in full the district court’s judgment of dismissal. The Supreme Court granted Hernandez certiorari on May 28, 2019.



Petitioners Hernandez and Bentacour, Sergio’s parents (“Hernandez”) argue that it is within the Court’s authority to recognize damages claims against federal officers for violating the Constitution absent statutory provision. According to Hernandez, even before Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics—the first case in which the Supreme Court recognized tort claims against federal officers for constitutional violations—courts had traditionally recognized the right to damages when necessary to remedy constitutional harm resulting from a federal officer’s misconduct. Although federal officers may have certain defenses against these tort claims, Hernandez contends that the availability of such defenses does not limit the Court’s authority to recognize these claims.

Respondent Mesa counters that Congress should decide whether to allow tort suits against federal officers for violating the Constitution because this view is consistent with the Court’s current position. Claiming that Congress would have enacted statutes allowing damages claims if it had intended to do so, Mesa argues that Congress does not recognize Hernandez’s claims because it has not statutorily recognized a remedy for such a claim in the last eight years since Mesa shot and killed Sergio. Mesa also asserts that Congress should determine whether to allow damages for constitutional violations because Congress is more competent than courts in considering the economic, social, and governmental issues that would result from creating such a remedy.


Hernandez argues that the Fifth Circuit mistakenly found a “new context” and erroneously held that Bivens did not apply when the facts giving rise to Hernandez’s claims are similar to those of Bivens. Abbasi states that a case may differ from Bivens and thus preclude a Bivens action based on (1) the officer’s rank, (2) the constitutional rights at stake, (3) the officer’s conduct, (4) availability of instructions to guide officer’s conduct under the circumstances, (5) the officer’s source of authority, (6) risk of interference by the judiciary into the functioning of other government branches, or (7) special factors that are neither present nor addressed in Bivens. According to Hernandez, the Fifth Circuit was mistaken in finding a new context because his constitutional claims are essentially the same as those in Bivens—a federal officer used excessive force unconstitutionally, and as such his claims do not present a new context that would have precluded a Bivens action. In any event, Hernandez asserts that the Fifth Circuit mistook the significance of a finding of new context. Relying on Abbasi, Hernandez contends that a new context may be unfavorable, but it is not so dispositive that it would foreclose his claims entirely.

Mesa counters that Hernandez’s claims should be dismissed based on a new context because his claims involve an alien who was killed in Mexico by a federal officer who was shooting on U.S. soil, all of which are issues absent in Bivens. Mesa further argues that the foreign elements present in Hernandez’s claims make it questionable as to whether Hernandez is subject to constitutional protection in the first place. Mesa contends that the Supreme Court’s denial, in United States v. Verdugo-Urquidez, of a Fourth Amendment claim brought by an alien against federal officers whose conduct occurred outside of the United States suggests that the duty to protect Fourth Amendment rights does not apply to foreign conduct. Accordingly, Mesa argues that Hernandez’s Fourth Amendment claim should be dismissed because Sergio was killed in Mexico. Similarly, Mesa contends that Hernandez’s Fifth Amendment claim should be dismissed because courts have held that claims against law enforcement officers for using excessive force are subject to a Fourth Amendment analysis and not a substantive due process analysis under the Fifth Amendment. Additionally, Mesa argues that Hernandez’s claims should be denied because a Bivens action is allowed under the narrow circumstances as provided in Bivens. Therefore, Mesa concludes that a finding of new context must be fatal to Hernandez’s claims.


Hernandez asserts that the four “special factors” the Fifth Circuit identified do not warrant caution against recognizing a Bivens action here; the four “special factors” are (1) national security, (2) foreign affairs and diplomacy, (3) extraterritoriality, and (4) congressional inaction. First, Hernandez contends that treating national security as a special factor because his claims relate to border security would lead to an absurd result where a Bivens action can never be brought against any border patrol officers whose conduct necessarily relates to national security. Second, Hernandez argues that his claims do not invoke sensitive U.S. foreign policy concerns but rather the constitutionality of a single federal officer’s actions. Third, Hernandez argues that extraterritoriality alone does not justify denial of a Bivens action. Although it is generally presumed that statutes only apply to domestic conduct unless Congress clearly intended otherwise, Hernandez claims that the purpose of this presumption is not implicated in his claims. Fourth, Hernandez argues that congressional inaction should warrant caution only in cases where Congress has actively discussed or regulated so that the absence of statutory provision would suggest Congress’s refusal in regulating those cases. Claiming that Congress has not actively legislated cross-border shootings, Hernandez contends that the lack of statute providing for damages for his claim is not deliberate.

On the other hand, Mesa claims that special factors are present under Abbasi if threats to the separation-of-powers principle exist, in which case courts must deny a private cause of action absent statutory provisions to prevent judicial intrusion into the functioning of other governmental branches. First, Mesa argues that a special factor is present because the Court’s recognition of a Bivens action here would interfere with the Executive branch and the Legislative branch’s scrutiny of national security issues. According to Mesa, the Court has yet to recognize a Bivens action involving federal officers whose mandate involves protecting national security. In response to Hernandez’s claim that the Court counseled against using national security to fend off inconvenient claims, Mesa disputes that the instruction applies only in domestic cases, which excludes Hernandez’s case. Second, Mesa claims that recognition of a Bivens action here would risk interfering with the government’s administration of foreign policy. Third, Mesa argues that extraterritoriality is a special factor in Hernandez’s claims that necessitates a presumption against applying statutes to foreign conduct without clear congressional intent to the contrary. Acknowledging that this presumption governs statutory interpretation specifically, Mesa asserts that it could be instructive in determining whether a Bivens action should apply to foreign conduct. Fourth, Mesa argues that congressional inaction on issues implicated in Hernandez’s claims is intentional and should discourage the Court in recognizing a Bivens action here.


Hernandez contends that Bivens requires his claims to proceed based on the lack of alternative remedy. First, Hernandez asserts that the Westfall Act bars any tort claims arising under state law against federal officers who acted within their scope of employment. Therefore, Hernandez claims that he is precluded from seeking remedy that would otherwise be available under Texas tort law. Second, Hernandez asserts that the Westfall Act restricts the remedy to only those available under the FTCA, which requires domestic conduct. Moreover, Hernandez continues, he is precluded from seeking remedy under the FTCA because the officer’s shooting occurred in Mexico. Under these circumstances, Hernandez concludes that Bivens is his only chance at obtaining any remedy at all.

Mesa argues that the lack of an alternative remedy is not a basis for omitting the special factor analysis in this context. Mesa maintains that in cases where alternative remedy is absent, the special factor analysis is particularly important in determining whether to create a new cause of action. , in support of Mesa, argues that alternative remedy is available for two reasons. First, APA Watch contends that the FTCA does not preclude claims involving diversity jurisdiction for torts that occurred outside of the United States. Second, APA Watch continues, Hernandez may sue in Texas where the application of its conflict-of-law rules would result in Mexico’s tort law being applied to Hernandez’s diversity claims involving torts that occurred abroad.



The Government of the United Mexican States (“Mexican States”), in support of Hernandez, argues that this case has nothing to do with national security issues. Specifically, Mexican States notes that the fact that the act occurred near an international border or that Mesa was a Border Patrol agent does not make this case fall within the realm of national security. The American Civil Liberties Union (“ACLU”), in support of Hernandez, furthers this proposition by noting that the United States has not pointed out how this case impairs the U.S. foreign policy in any concrete ways. Additionally, the Immigrant and Civil Rights Organizations, in support of Hernandez, point out that if any case did raise foreign policy or national security concerns, those cases can be addressed on a case-by-case basis like in Abbasi.

The United States argues that imposing liability on Border Patrol agents in this context could hinder agents’ ability to carry out their duties and harm national security. Specifically, the United States points out that expanding Bivens in this case would expand it to the entire class of similar cases, therefore even if this particular case does not implicate national security, other cases that fall within the class may be implicated. In addition, the Criminal Justice Legal Foundation, asserts that the U.S. Customs and Border Protection Agency is in charge of securing the nation’s borders, which is “essential to national security” and the judiciary should not infringe in the realm of national security.


The Institute for Justice, in support of Hernandez, argues that the text and structure of the Westfall Act show that Congress intend to provide robust opportunities for litigants to claim Bivens remedies. Specifically, the Institute for Justice explains that Congress intended to allow individuals to utilize Bivens to recover against federal officers for constitutional violations. Therefore, the Institute for Justice contends that a Bivens remedy is “congressionally authorized” in this case. In addition, Gregory S. Sisk (“Sisk”), in support of Hernandez, argues that this case does not present separation of powers issues because in addition to congressional intent permitting this application of a Bivens remedy, this case also does not intrude on the Executive’s constitutional authority. Sisk explains that there is “no high-level executive policy” that would be hindered if damages were allowed in this case, and therefore, there are no separation of powers issues present here.

The United States, in support of Mesa, contends that based on the Court’s precedents, Bivens should not be extended to areas reserved for the political branches. Additionally, the Criminal Justice Legal Foundation, in support of Mesa, contends that separation of powers issues are central to the special factors analysis, and typically Congress is in the best position to determine if a damages remedy should be allowed. The Criminal Justice Legal Foundation further points out that Congress has specifically denied monetary relief for torts occurring outside the United States, and therefore, the Court should take notice of that decision by a political branch. The Criminal Justice Legal Foundation also notes that foreign policy is constitutionally left to the Executive and Legislative Branches, and the Judicial Branch should not “create a cause of action that implicates foreign policy” if these branches did not intend for that result.


Former high-level officials of U.S. Customs and Border Protection Agency (“former officials”), in support of Hernandez, point out that many instances of questionable use of lethal force did not result in any disciplinary actions against those Border Patrol agents. In particular, the former officials note that from 2007 to 2014, no Border Patrol agents have been disciplined for using excessive force. The former officials further contend that if suits like this one are unable to proceed, there will be no way for victims and their families to hold Border Patrol agents accountable for using excessive force, which will allow these agents to continue using questionable force without fear of consequences.

The United States argues that Border Patrol agents are held accountable for their actions through Department of Justice investigations, which occur after excessive-force allegations and can result in an order for restitution. The United States also notes that there are other deterrents in place to enforce accountability, including internal reviews of Border Patrol agents and discipline for violations. Additionally, the APA Watch, in support of Mesa, notes that extending Bivens in this context could harm the law-enforcement relationship between U.S. agents and their Mexican counterparts on border concerns. In particular, the APA Watch explains that there will be a focus on bringing claims against U.S. agents because Mexican agents are immune from these claims. The APA Watch argues that Mexico should amend its laws and permit excessive-force claims against Mexican agents and foreign agents.

Edited by 


Additional Resources 

• Robert Barnes: Supreme Court to Decide Whether Families of Mexican Teens Killed by U.S. Border Agents Can Sue, The Washington Post (May 28, 2019).

• Adam Liptak: Justices to Hear Case of U.S. Agent’s Shooting of Teenager Across the Mexican Border, The New York Times (May 28, 2019).

• Nick Sibilla: Sleeper Supreme Court Case Could Make Suing Rogue Federal Agents Almost Impossible, Forbes (Sept. 27, 2019).

• Andrew Kent: What Happened in Hernandez v. Mesa?, LawFare (June 27, 2017).