Nos. 17-1678 and 18-309

In the Supreme Court of the United States
JESUS C. HERNÁNDEZ, ET AL., PETITIONERS
v.
JESUS MESA, JR.
LONNIE SWARTZ, PETITIONER
v.
ARACELI RODRIGUEZ, INDIVIDUALLY AND AS THE
SURVIVING MOTHER AND PERSONAL REPRESENTATIVE
OF J. A.
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH AND NINTH CIRCUITS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
MORGAN L. RATNER
Assistant to the Solicitor
General
MARK B. STERN
MARY HAMPTON MASON
KATHERINE TWOMEY ALLEN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTIONS PRESENTED

Petitioners in Hernández, No. 17-1678, and respondent in Swartz, No. 18-309, brought civil actions under
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), each 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 questions presented
are:
1. Whether the remedy recognized in Bivens should
be extended to the claims in these cases.
2. If the claims in Hernández cannot be asserted under Bivens, whether the Westfall Act, 28 U.S.C. 2679,
violates the Due Process Clause of the Fifth Amendment.
3. If the Bivens remedy is extended to the Fourth
Amendment claim in Swartz, whether the agent is entitled to qualified immunity.

(I)

 TABLE OF CONTENTS

Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
A. Hernández v. Mesa, No. 17-1678 ..................................... 2
B. Swartz v. Rodriguez, No. 18-309 ..................................... 9
Discussion .................................................................................... 13
Conclusion ................................................................................... 23
TABLE OF AUTHORITIES

Cases:
Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971) ...................... 1, 3
Carlson v. Green, 446 U.S. 14 (1980) ..................................... 5
Chappell v. Wallace, 462 U.S. 296 (1983) ............................ 18
Graham v. Connor, 490 U.S. 386 (1989) ................................ 4
Haig v. Agee, 453 U.S. 280 (1981) ........................................ 16
Hernandez v. Mesa, 137 S. Ct. 2003 (2017) ............... passim
Kiobel v. Royal Dutch Petroleum Co.,
569 U.S. 108 (2013).............................................................. 18
Meshal v. Higgenbotham, 804 F.3d 417
(D.C. Cir. 2015), cert. denied, 137 S. Ct. 2325 (2017) .. 17, 18
RJR Nabisco, Inc. v. European Cmty.,
136 S. Ct. 2090 (2016) ......................................................... 18
Sanchez-Espinoza v. Reagan, 770 F.2d 202
(D.C. Cir. 1985) ............................................................. 16, 17
Schweiker v. Chilicky, 487 U.S. 412 (1988) ......................... 19
United States v. Delgado-Garcia, 374 F.3d 1337
(D.C. Cir. 2004), cert. denied, 544 U.S. 950 (2005) .......... 17
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990)...................................................... 4, 5, 10
Webster v. Doe, 486 U.S. 592 (1988) ..................................... 22

(III)

 IV
Cases—Continued:

Page

Wilkie v. Robbins, 551 U.S. 537 (2007) .......................... 19, 22
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) ..................... passim
Constitution and statutes:
U.S. Const.:
Amend. IV............................................................... passim
Amend. V ................................................................ passim
Due Process Clause ....................................... 14, 21, 22
Alien Tort Statute, 28 U.S.C. 1350 ........................................ 3
Federal Tort Claims Act, 28 U.S.C. 1346(b),
2671-2680 ............................................................................... 3
28 U.S.C. 2680(k) ............................................................. 17
Torture Victim Protection Act of 1991, Pub. L. No.
102-256, 106 Stat. 73 ........................................................... 17
Westfall Act, 28 U.S.C. 2679 ............................................. 3, 21
28 U.S.C. 2679(b) ............................................................. 22
6 U.S.C. 111 ............................................................................ 16
6 U.S.C. 202 (2012 & Supp. V 2017) ..................................... 16
42 U.S.C. 1983 .................................................................. 12, 17
Miscellaneous:
Press Release, Office of Pub. Affairs, U.S. Dep’t of
Justice, Federal Officials Close Investigation into
the Death of Sergio Hernández-Guereca (Apr. 27,
2012), https://www.justice.gov/opa/pr/federalofficials-close-investigation-death-sergiohernandez-guereca ............................................................... 3

 In the Supreme Court of the United States
No. 17-1678
JESUS C. HERNÁNDEZ, ET AL., PETITIONERS
v.
JESUS MESA, JR.
No. 18-309
LONNIE SWARTZ, PETITIONER
v.
ARACELI RODRIGUEZ, INDIVIDUALLY AND AS THE
SURVIVING MOTHER AND PERSONAL REPRESENTATIVE
OF J. A.
ON PETITIONS FOR WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH AND NINTH CIRCUITS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This brief is submitted in response to the Court’s orders inviting the Solicitor General to express the views
of the United States in the above-captioned cases. Both
cases present the same question whether the remedy
recognized in Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971),
should be extended to a claim arising from an injury to
a foreign citizen in foreign territory. In the view of the
(1)

 2
United States, the petition for a writ of certiorari in Hernández, No. 17-1678, should be granted, limited to the
first question presented in the petition, and the petition
for a writ of certiorari in Swartz, No. 18-309, should be
held pending the disposition of Hernández.
STATEMENT

The two petitions arise from similar fact patterns involving Mexican citizens fatally injured in Mexico by
U.S. Border Patrol agents.
A. Hernández v. Mesa, No. 17-1678

1. Petitioners allege that on June 7, 2010, their son,
Sergio Adrián Hernández Güereca, 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 this location runs down the middle of the culvert, and a fence
sits at the top of the embankment on the U.S. side. Ibid.
Hernández and his friends allegedly 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’ complaint alleges that respondent Jesus
Mesa, Jr., a U.S. Border Patrol agent, 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. 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. Hernández Pet. App. 199. The FBI, however, released a statement explaining that Agent Mesa
had resorted to force only after Hernández and others

 3
refused to follow commands to stop throwing rocks at
him. Id. at 199-200.
After a “comprehensive” investigation, the Department of Justice (DOJ) declined to bring criminal
charges against Agent Mesa. Press Release, Office of
Pub. Affairs, U.S. Dep’t of Justice, Federal Officials
Close Investigation into the Death of Sergio
Hernández-Guereca (Apr. 27, 2012), https://www.
justice.gov/opa/pr/federal-officials-close-investigationdeath-sergio-hernandez-guereca. DOJ issued a statement expressing regret about Hernández’s death and
reiterating 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. Petitioners initially sued the United States, several federal agencies, and unknown U.S. Border Patrol
agents, asserting claims under the Federal Tort Claims
Act (FTCA), 28 U.S.C. 1346(b), 2671-2680; the Alien
Tort Statute (ATS), 28 U.S.C. 1350; and the U.S. Constitution. Hernández Pet. App. 172 & n.3. Petitioners
later named Agent Mesa as one of the individual defendants. Id. at 172.
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. Hernández Pet. App. 176. It then dismissed those claims
on sovereign-immunity grounds. Id. at 176-192.
The district court separately addressed the individualcapacity claim against Agent Mesa, which petitioners
had purported to bring under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), for alleged violations of Hernández’s
Fourth and Fifth Amendment rights. Hernández Pet.

 4
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 because, under Graham v. Connor, 490
U.S. 386 (1989), an excessive-force claim could not be
brought under the Fifth Amendment. Hernández Pet.
App. 163-169. 1
3. a. Initially, a three-judge panel of the court of appeals affirmed in part, reversed in part, and remanded.
Hernández Pet. App. 100-158. As relevant here, the
panel affirmed the district court’s conclusion that the
Fourth Amendment did not apply, but it determined
that petitioners had adequately alleged a violation of
the Fifth Amendment and that Agent Mesa lacked qualified immunity. Id. at 119-138, 150-154. The panel also
determined that it was appropriate to extend a Bivens
remedy to the new “context in which an individual located abroad asserts a right to be free from gross physical abuse under the Fifth Amendment against federal
law enforcement agents located in the United States.”
Id. at 149; see id. at 138-150.
b. The court of appeals granted rehearing en banc
and affirmed the district court’s dismissal of petitioners’ Bivens claims against Agent Mesa. Hernández Pet.
App. 45-49. The court of appeals determined that peti-

Petitioners voluntarily dismissed their claims against two other
agents, and the district court granted summary judgment to the remaining individual defendants because petitioners had failed to offer evidence that the defendants’ alleged acts and omissions in supervising Agent Mesa proximately caused Hernández’s death. Hernández Pet. App. 106-107. Those claims are not at issue here.
1

 5
tioners 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. 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’
claims 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’
claims 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 and internal quotation marks omitted). Indeed, the Court noted that it had not extended Bivens
to any new context “for the past 30 years.” Ibid.
The Court in Abbasi 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 decisions in
which the Court has previously recognized a Bivens
remedy. 137 S. Ct. at 1859. Second, the Court reiterated the longstanding rule that Bivens should not be extended when “special factors counsel[] hesitation.” Id.
at 1857 (quoting Carlson v. Green, 446 U.S. 14, 18
(1980)). The Court explained that “the inquiry must

 6
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.” Id. at 1857-1858. Thus, 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. Applying those principles, the Court declined to extend the
Bivens remedy to certain challenges to conditions of
confinement in the wake of the September 11 terrorist
attacks, and remanded another claim for the court of
appeals to conduct the special-factors analysis in the
first instance. Id. at 1860-1865.
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 this Court’s intervening guidance in Abbasi. Hernandez, 137 S. Ct. at 2006 (citation
omitted). The Court explained that Abbasi had “clarified what constitutes a ‘special factor counselling hesitation.’ ” Ibid. (quoting Abbasi, 137 S. Ct. at 1857)
(brackets omitted). The Court observed that the
Fourth Amendment question was “sensitive” and could
have “far reaching” consequences that could be “unnecessary to resolve this particular case.” Id. at 2007. It
also concluded that Agent Mesa was not entitled to
qualified immunity on the Fifth Amendment claim
based on a fact—that Hernández was an alien without a
significant voluntary connection to the United States—
that was “unknown to Mesa at the time of the shooting.”
Ibid. But the Court remanded for the consideration of

 7
other qualified-immunity arguments on remand “if necessary.” Ibid.
Justice Thomas dissented. Hernandez, 137 S. Ct. at
2008. He noted that the circumstances of this case are
“meaningfully different from those at issue in Bivens
and its progeny.” Ibid. “Most notably,” he explained,
“this case involves cross-border conduct, and those
cases did not.” 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 claims against Agent Mesa.
Hernández Pet. App. 1-23. The court recognized that
“Abbasi instructs us to determine initially whether
these circumstances present a ‘new context’ for Bivens
purposes, and if so, whether ‘special factors’ counsel
against implying a damages claim against an individual
federal officer.” Id. at 5. Applying that two-part framework, the court declined to extend Bivens to the circumstances here. Id. at 5-23.
The court of appeals first determined that “the
cross-border shooting at issue here must present a ‘new
context’ for a Bivens claim.” Hernández Pet. App. 8.
Relying on the considerations enumerated in Abbasi,
the court explained that this case differs from prior
cases in terms of the “constitutional right at issue, the
extent of judicial guidance as to how an officer should

 8
respond, and the risk of the judiciary’s disruptive intrusion into the functioning of the federal government’s coequal branches.” Ibid. Indeed, the court added, “[b]ecause 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.” Ibid. The court
thus rejected petitioners’ contrary arguments, noting
that they amounted to “a virtual repudiation of the
Court’s holding” in Abbasi. Id. at 11.
The court of appeals next held that this new context
presents numerous “special factors” counseling against
an implied Bivens remedy. Hernández Pet. App. 11-23.
First, the court determined that extending Bivens to
this context would “threaten[] the political branches’ supervision of national security.” Id. at 13. Specifically,
the court explained that “the threat of Bivens liability
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.’ ” Id. at 13, 15 (citation
omitted). Second, the court determined that extending
Bivens to this context would “risk[] interference with
foreign affairs and diplomacy more generally.” Id. at
15. It observed that the United States and Mexico had
engaged in diplomatic discussions regarding crossborder incidents and the United States had declined
Mexico’s request to extradite Agent Mesa. Id. at 15-16.
Third, the court determined that Congress’s intentional
omission of damages remedies for injuries to foreign citizens on foreign soil counsels against implying such a
remedy here. Id. at 16-18. Fourth, the court determined that “the extraterritorial aspect of this case is itself a special factor that underlies and aggravates the

 9
separation-of-powers issues already discussed.” Id. at
19; see id. at 19-22. The court of appeals accordingly
concluded that “this is not a close case.” Id. at 22.
Judge Dennis concurred in the judgment. Hernández 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 had been severed from this case and were not before the en banc court. Hernández Pet. App. 25.
Judge Prado, joined by Judge Graves, dissented.
Hernández 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 because this case
centers on an individual federal officer acting in his law
enforcement capacity.” Id. at 26.
B. Swartz v. Rodriguez, No. 18-309

1. Respondent Araceli Rodriguez alleges that on October 10, 2012, her son, J.A., a 16-year-old Mexican citizen, was walking by himself on a street in Nogales,
Mexico that runs parallel to the border fence dividing
Mexico from the United States. Swartz Pet. App. 6. Respondent’s complaint alleges that U.S. Border Patrol
Agent Lonnie Swartz, who was standing in the United
States, shot J.A. through the fence and killed him. Ibid.
The complaint also alleges that J.A. was not threatening
Agent Swartz. Ibid.
The United States prosecuted Agent Swartz for
murder, but he was acquitted. Swartz Pet. App. 21; see
15-cr-1723 Docket entry No. 659 (D. Ariz. Dec. 17,
2018).

 10
2. Respondent sued Agent Swartz for damages under Bivens, alleging that he violated J.A.’s clearly established Fourth and Fifth Amendment rights by
shooting and killing J.A. without justification. Swartz
Pet. App. 7-8. Agent Swartz moved to dismiss the complaint, and the district court granted the motion in part
and denied it in part. Id. at 76-105. The court determined that Agent Swartz had violated J.A.’s clearly established Fourth Amendment rights, but it dismissed
respondent’s Fifth Amendment claim because it determined that the alleged conduct was more properly analyzed under the Fourth Amendment. Id. at 104.
3. Agent Swartz filed an interlocutory appeal challenging the district court’s denial of qualified immunity.
Swartz Pet. App. 8. In an amicus brief, the United
States argued, among other things, that respondent
lacked a Bivens cause of action for the Fourth Amendment claim. Ibid. Although Agent Swartz had not made
that argument in district court or in his opening brief,
he adopted the argument in his reply brief. Ibid.
While the appeal was pending, this Court decided
Abbasi, supra, and Hernandez, supra. After receiving
supplemental briefing on the impact of those decisions,
the Ninth Circuit concluded that Agent Swartz was not
entitled to qualified immunity on respondent’s Fourth
Amendment claim and that a Bivens remedy was available for that claim. Swartz Pet. App. 1-53.
a. The court of appeals first determined that Agent
Swartz was not entitled to qualified immunity on the
Fourth Amendment claim. Swartz Pet. App. 8-22. The
court explained that J.A., a Mexican citizen, had been
shot and thus “seized” in Mexico. Id. at 11. And it rejected the argument that, under Verdugo-Urquidez, su-

 11
pra, the Fourth Amendment does not apply to the seizure of an alien abroad. Swartz Pet. App. 11-17. The
court then concluded that it was clearly established that
Agent Swartz could not shoot J.A. “for no reason,”
which the court treated as the relevant inquiry for
qualified-immunity purposes. Id. at 21; see id. at 17-22.
The court declined to analyze respondent’s Fifth Amendment claim, though it noted that the Fifth Amendment
might apply if the Fourth Amendment did not. Id. at 22
& n.62.
The court of appeals next determined that it was appropriate to extend Bivens to the circumstances here.
Swartz Pet. App. 22-52. Given this Court’s recent guidance in Hernandez, the court of appeals excused any
waiver and concluded that it had jurisdiction to address
the Bivens question. Id. at 23-24. The court also recognized that this case presents a “new context” under
Abbasi, as it involves an injury to a foreign citizen in a
foreign country. Id. at 31-32.
The court of appeals nonetheless extended Bivens
because it concluded that respondent lacked an adequate alternative remedy and that no special factors
counseled hesitation. Swartz Pet. App. 32-53. The
court emphasized that respondent could not bring a tort
claim against the United States or Agent Swartz, that
restitution would not provide an adequate remedy, and
that other potential alternative remedies were, in its
view, inadequate. Id. at 33-43. The court then concluded that no “special factors” are present in this case.
Id. at 43-53. The court performed that analysis at a
“high level of specificity,” evaluating the “specific facts
alleged in the complaint, not cross-border shootings
generally.” Id. at 44-45. It concluded that no special

 12
factors counseled hesitation in extending a Bivens remedy to “the unjustifiable and intentional killing of someone who was simply walking down a street in Mexico
and who did not direct any activity toward the United
States.” Id. at 45. On those precise facts, the court rejected the argument that this context implicates national security or foreign policy, or that it involves policies or policymakers. Id. at 45-51. The court thus affirmed the district court’s conclusions that Agent
Swartz is not entitled to qualified immunity and that extending Bivens is appropriate here. Id. at 52-53.
b. Judge Milan Smith dissented. Swartz Pet. App.
55-75. He explained that, in determining whether to extend Bivens, the “question is who should decide whether to provide for a damages remedy, Congress or the
courts?” Id. at 55 (quoting Abbasi, 137 S. Ct. at 1857)
(internal quotation marks omitted). In this case, he concluded, “the obvious answer is Congress.” Ibid.
Judge Smith observed that this case presents a new
context for a Bivens claim and that, under this Court’s
precedents, such expansions of Bivens are disfavored.
Swartz Pet. App. 56-64. In his view, several special factors counseled against authorizing a Bivens remedy
here. Id. at 64-73. He noted that cross-border incidents
implicate foreign relations and border security, both of
which are prerogatives of the political branches. Id. at
65-67. He also emphasized that Congress had intentionally omitted a damages remedy in similar contexts, including 42 U.S.C. 1983, which suggested that the judiciary should not imply such a remedy. Swartz Pet. App.
67-70. Finally, he explained that the extraterritorial nature of the case provided additional reasons not to imply
a damages remedy. Id. at 70-71.

 13
Judge Smith criticized the majority for placing “undue weight on what is, in its view, an insufficient alternative remedial structure.” Swartz Pet. App. 71. He
explained that, under this Court’s decisions, the lack of
an alternative remedy “cannot, on its own, compel judicial creation of a damages remedy.” Ibid. He thus
warned that “the majority [had] create[d] a circuit split”
with the en banc Fifth Circuit. Id. at 61.
DISCUSSION

Both petitions raise the first question presented:
whether the judicially created Bivens remedy should be
extended to a claim arising from an injury to a foreign
citizen in foreign territory. The en banc Fifth Circuit
correctly declined to extend the Bivens remedy to that
new context, see Hernández Pet. App. 1-23, but a divided panel in the Ninth Circuit erroneously reached
the opposite conclusion, see Swartz Pet. App. 1-53. Certiorari is warranted to resolve the conflict on that important question and to provide the lower courts additional guidance after this Court’s decision in Ziglar v.
Abbasi, 137 S. Ct. 1843 (2017).
Although both cases would be appropriate vehicles
for considering the first question presented, the United
States recommends that the Court grant certiorari in
Hernández, No. 17-1678, and hold the petition in
Swartz, No. 18-309. The former case cleanly presents
the threshold Bivens issue, and the en banc Fifth Circuit considered whether a Bivens remedy is available
for both Fourth and Fifth Amendment claims. By contrast, the Ninth Circuit addressed Bivens only in the
Fourth Amendment context, and its decision presents
an additional complex question about qualified immunity, including the scope of the Fourth Amendment.

 14
Finally, certiorari is not warranted on the second
question presented in the Hernández petition—
whether the Westfall Act violates the Due Process
Clause of the Fifth Amendment—because that question
was not pressed or passed upon below and is not the
subject of any disagreement among the lower courts.
1. The Fifth Circuit correctly declined to extend
Bivens to the novel and special circumstances in these
cases, and the Ninth Circuit erred in reaching the opposite conclusion. In Abbasi, this Court strongly cautioned against extending the Bivens remedy to new contexts, explaining that the Court’s willingness to imply
private rights of action not created by Congress
had fundamentally changed since Bivens was decided.
137 S. Ct. at 1855-1857. Because it is a “significant step
under separation-of-powers principles for a court to determine that it has the authority * * * to create and
enforce a cause of action for damages against federal
officials in order to remedy a constitutional violation,”
id. at 1856, the Court emphasized that “expanding the
Bivens remedy is now a disfavored judicial activity,” id.
at 1857 (citation and internal quotation marks omitted).
It explained that courts should not extend a Bivens
remedy to any new context “if there are special factors
counselling hesitation in the absence of affirmative action by Congress.” Ibid. (citation and internal quotation
marks omitted).
a. These cases present a new context for Bivens purposes because they differ in “meaningful way[s],” Abbasi, 137 S. Ct. at 1859, from the three prior cases in
which this Court has recognized a Bivens remedy. In
particular, this Court has never recognized a Bivens
remedy arising from an injury inflicted on a foreign citizen in another country’s sovereign territory. And, at

 15
least as relevant in Hernández, this Court has never
recognized a Bivens remedy for asserted violations of
the substantive due process component of the Fifth
Amendment. Like the claims in Abbasi, which presented new contexts, a claim for injury suffered by a
foreign national in a foreign country as a result of the
actions of a U.S. Border Patrol agent “bear[s] little resemblance” to a “claim against FBI agents for handcuffing a man in his own home without a warrant.” Id. at
1860.
For that reason, every court of appeals judge to consider the question—including the dissenting judges in
the en banc Fifth Circuit and the panel in the Ninth
Circuit—has agreed that this type of case presents a
new context. See Hernández Pet. App. 26; Swartz Pet.
App. 31-32. Indeed, this Court’s remand order in Hernandez presupposed that the case presents a new context, which is why the Court remanded in light of its
“clarif[ication]” of “what constitutes a special factor
counselling hesitation.” 137 S. Ct. at 2006 (brackets, citation, and internal quotation marks omitted); see id. at
2007 (noting that it “may be unnecessary to resolve” the
underlying Fourth Amendment question “in light of the
intervening guidance provided in Abbasi”).
b. Courts should not extend Bivens to the new context presented here. In Abbasi, this Court instructed
that to determine whether a new context presents any
“special factor counselling hesitation,” a court “must
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.” 137 S. Ct. at 1857-1858. If a court has
any “sound reasons to think Congress might doubt the
efficacy or necessity of a damages remedy as part of the

 16
system for enforcing the law and correcting a wrong,
the court[] must refrain from creating the remedy in
order to respect the role of Congress.” Id. at 1858 (emphasis added). Applying those principles, the en banc
Fifth Circuit appropriately identified several special
factors that counsel against implying a damages remedy here. See Hernández Pet. App. 13-23.
First, imposing a damages remedy on aliens injured
abroad by U.S. government officials would implicate
foreign-policy considerations that are committed to the
political branches. Hernández Pet. App. 15-16; see
Haig v. Agee, 453 U.S. 280, 292 (1981). As the Fifth Circuit observed, “the United States government is always
responsible to foreign sovereigns when federal officials
injure foreign citizens on foreign soil.” Hernández Pet.
App. 15. In Hernández, for example, the United States
declined Mexico’s request to extradite Agent Mesa,
ibid., although the two countries have maintained a “dialogue” about cross-border shootings, id. at 16. Judicial
extension of a Bivens remedy would inject the courts
into these sensitive matters of international diplomacy
and would risk undermining the government’s ability to
speak with one voice in international affairs. See
Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208-209
(D.C. Cir. 1985) (Scalia, J.).
Second, “extending Bivens would interfere with the
political branches’ oversight of national security.” Hernández Pet. App. 23; see id. at 13-15. As the Fifth Circuit recognized, Congress has charged the U.S. Border
Patrol with securing the border and preventing terrorist attacks. Id. at 13; see 6 U.S.C. 111 and 6 U.S.C. 202
(2012 & Supp. V 2017). Imposing damages liability on
individual agents carrying out that important nationalsecurity function “could undermine the Border Patrol’s

 17
ability to perform duties essential to national security”
by “increas[ing] the likelihood that Border Patrol agents
will ‘hesitate in making split second decisions.’ ” Hernández Pet. App. 13, 15 (citation omitted); see 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). And other suits by aliens injured abroad might
similarly implicate military or intelligence activities that
affect national security. See, e.g., Sanchez-Espinoza,
770 F.2d at 208-209.
Third, implying a Bivens remedy here “would flout
Congress’s consistent and explicit refusals to provide
damage remedies for aliens injured abroad.” Hernández Pet. App. 23; see id. at 16-18. Several statutes indicate that Congress’s omission of the damages remedy
that petitioners seek was not a “mere oversight.”
Abbasi, 137 S. Ct. at 1862. Most relevantly, when Congress enacted 42 U.S.C. 1983 to provide a statutory
remedy for individuals whose constitutional rights are
violated by state officials, Congress expressly limited
that remedy to “citizen[s] of the United States or other
person[s] within the jurisdiction thereof.” Congress
similarly has declined to impose damages liability for
federal officials’ actions abroad in the FTCA, 28 U.S.C.
2680(k), and in the Torture Victim Protection Act of
1991, Pub. L. No. 102-256, 106 Stat. 73. Because Congress has “repeated[ly] refus[ed]” to create private
rights of action in these circumstances, “[i]t is not credible that Congress would favor the judicial invention of
those rights.” Hernández Pet. App. 17-18; see Meshal
v. Higgenbotham, 804 F.3d 417, 430 (D.C. Cir. 2015)

 18
(Kavanaugh, J., concurring), cert. denied, 137 S. Ct.
2325 (2017).
Fourth, “the extraterritorial aspect of this case is itself a special factor that underlies and aggravates the
separation-of-powers issues already discussed.” Hernández Pet. App. 19; see id. at 19-22. The presumption
against extraterritoriality “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,” and that
concern “is magnified” when “the question is not what
Congress has done but instead what courts may do.”
Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 116
(2013). And even when an underlying substantive rule
has extraterritorial reach, the “presumption against extraterritoriality must be applied separately” to the
question whether a private damages remedy extends to
injuries suffered abroad. RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2108 (2016). The presumption thus counsels against extending the Bivens damages remedy to injuries suffered by aliens abroad. See,
e.g., Meshal, 804 F.3d at 425-426 (declining to extend
Bivens extraterritorially).
In light of any one of these four features—and certainly considering all four “[t]aken together,” Chappell
v. Wallace, 462 U.S. 296, 304 (1983)—the en banc Fifth
Circuit correctly held that “special factors” counsel
against extending Bivens to this new context.
c. The Ninth Circuit, by contrast, improperly discounted those factors. See Swartz Pet. App. 43-53. It
also erroneously treated the supposed absence of an adequate alternative remedy as a reason to expand
Bivens. See id. at 33-43. But this Court has made clear
that while the presence of an alternative remedy may

 19
preclude an 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 v. Chilicky, 487 U.S. 412,
421-422 (1988) (emphasis added). To the contrary, the
special-factors analysis applies “even in the absence of
an alternative.” Wilkie v. Robbins, 551 U.S. 537, 550
(2007). Moreover, as the Fifth Circuit correctly noted,
the absence of a Bivens remedy “does not mean the absence of deterrence.” Hernández Pet. App. 18; see id.
at 18-19 (discussing other means of deterrence, such as
criminal investigations and prosecutions).
2. In addition to the fact that the Ninth Circuit has
wrongly decided an important question of Bivens liability, the Fifth and Ninth Circuits have plainly reached
differing conclusions based on materially identical facts.
Compare Hernández Pet. App. 1-23, with Swartz Pet.
App. 22-52; see also Swartz Pet. App. 59-61 (M. Smith,
J., dissenting) (urging adherence to the Fifth Circuit’s
decision in Hernandez and criticizing the Swartz majority for “creat[ing] a circuit split”). A direct conflict thus
exists between the Fifth Circuit and the Ninth Circuit
about whether a Bivens remedy is available for aliens
injured abroad in a cross-border shooting.
Certiorari is warranted to resolve that conflict. The
division between the Fifth and Ninth Circuits suggests
that lower courts would benefit from additional guidance regarding this Court’s decision in Abbasi. And the
question whether to extend a Bivens remedy to these
circumstances is undeniably significant—as underscored by this Court’s addition of that question when
Hernández was previously before the Court. That
question implicates substantial concerns about national

 20
security and foreign policy. See Hernández Pet. App.
13-16; pp. 16-17, supra. Particularly in this sensitive
area of international relations, “an uneven administration of the rule of law” is “an untenable result.” Swartz
Pet. App. 74 (M. Smith, J., dissenting).
3. Although both petitions would be suitable vehicles for addressing the Bivens question—and although
the Fifth Circuit reached the correct outcome—the petition in Hernández, No. 17-1678, offers a few advantages. As a result, the Court should grant certiorari
in that case and hold the petition in Swartz, No. 18-309.
First, Hernández is a well-vetted vehicle. It has already been before this Court, and the Bivens question
received a full airing before the en banc court of appeals
on remand. See Hernández Pet. App. 1-42.
Second, Hernández would more definitively resolve
the Bivens question for future similar cases. The Fifth
Circuit considered whether a Bivens remedy is available for both Fourth and Fifth Amendment claims. See
Hernández Pet. App. 8-10. By contrast, the Ninth Circuit in Swartz addressed only whether a Bivens remedy
is available for the plaintiff ’s Fourth Amendment claim.
See Swartz Pet. App. 11-22. In the view of the United
States, the result of the analysis is the same under both
the Fourth and the Fifth Amendments. But because
this Court noted in Abbasi that a different “constitutional right” could present a new Bivens context,
137 S. Ct. at 1860, a ruling in Hernández would remove
any doubt about whether the Court’s holding in the
Fourth Amendment context applies to Fifth Amendment claims as well. Cf. Swartz Pet. App. 22 & n.62 (reserving Fifth Amendment question).
Third, Hernández presents only the Bivens question. The Ninth Circuit’s decision in Swartz presents

 21
the additional question whether the Border Patrol
agent is entitled to qualified immunity, including whether the Fourth Amendment applies to an alien injured
abroad. See Swartz Pet. 16-21. When the Court last
considered these issues, it indicated that it would prefer
to focus on the “antecedent” Bivens question because
the underlying Fourth Amendment issue “is sensitive
and may have consequences that are far reaching.”
Hernandez, 137 S. Ct. at 2006-2007. In addition, the
Bivens question and the Fourth Amendment question
are sufficiently distinct, complex, and important that it
would best serve the Court to focus the parties’ and the
Court’s resources on the Bivens question alone. That
said, if the Court grants review in Hernández and decides to extend Bivens to the new context here, the underlying Fourth Amendment question is sufficiently important that it would likely warrant review in a future
case. Alternatively, then, the Court could choose to
grant Swartz and hold Hernández, in order to consider
both questions now.
Either way, at a minimum the Court should grant
certiorari in one of these two cases to address the question whether to extend a Bivens remedy to the new context of an injury inflicted on a foreign citizen in another
country’s sovereign territory. If it grants one of these
two petitions, the Court should hold the other, as granting both and consolidating them would not provide any
additional benefit (and would complicate briefing and
argument, given the different postures).
4. If the Court grants the petition in Hernández,
certiorari is not warranted on the second question presented. Petitioners argue for the first time (Hernández
Pet. 23-27) that the Westfall Act, 28 U.S.C. 2679, would
violate the Due Process Clause of the Fifth Amendment

 22
if it preempts state-law tort suits for constitutional violations by federal officers where no Bivens remedy exists. In petitioners’ view (Hernández Pet. 26), the absence of either a federal or a state forum for seeking
money damages against federal officers for constitutional violations would “raise[] serious constitutional
problems” because it would “cut off access to any judicial forum for a colorable constitutional claim.” Petitioners did not make that argument before the court of
appeals (or before this Court previously). Because this
Court “is one of review, not of first view,” Hernandez,
137 S. Ct. at 2007 (citation omitted), it ordinarily does
not entertain claims that were neither pressed nor
passed upon in the courts below.
Nothing justifies a departure from that practice in
this case. Petitioners do not allege a conflict on the second question presented; indeed, they do not allege that
any court has ever addressed it. See Hernández Pet.
25-27. And the contention that the Westfall Act violates
the Due Process Clause is meritless in any event. Petitioners rely (id. at 26-27) on this Court’s 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 merely prohibits a specific type of remedy—damages against federal officers acting within the scope of their employment
—and does not purport to “deny any judicial forum” for
constitutional claims. Ibid.; see 28 U.S.C. 2679(b). Petitioners fail to cite any decision of this Court or any
other court suggesting that the Constitution enshrines
a right to sue federal officers for money damages. Cf.,
e.g., Wilkie, 551 U.S. at 550 (noting that, “even in the

 23
absence of an alternative, a Bivens remedy is a subject
of judgment”). And if petitioners face barriers to asserting their claims through other avenues, such as a
suit against the United States under the FTCA or a suit
for injunctive relief, the Westfall Act does not erect
those barriers.
CONCLUSION

The petition for a writ of certiorari in Hernández, No.
17-1678, should be granted, limited to the first question
presented in the petition. The petition for a writ of certiorari in Swartz, No. 18-309, should be held pending the
disposition of Hernández.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
Assistant Attorney General
JEFFREY B. WALL
Deputy Solicitor General
MORGAN L. RATNER
Assistant to the Solicitor
General
MARK B. STERN
MARY HAMPTON MASON
KATHERINE TWOMEY ALLEN
Attorneys

APRIL 2019