     Case: 12-50217       Document: 00514394720         Page: 1     Date Filed: 03/20/2018

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                FILED
                                                                                March 20, 2018
                                       No. 12-50217
                                                                                Lyle W. Cayce
                                                                                Clerk
JESUS C. HERNANDEZ, Individually and as the surviving father of Sergio
Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of
Sergio Adrian Hernandez Guereca; MARIA GUADALUPE GUERECA
BENTACOUR, Individually and as the surviving mother of Sergio Adrian
Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio
Adrian Hernandez,

                     Plaintiffs - Appellants

v.

JESUS MESA, JR.,

                     Defendant - Appellee

                   Appeal from the United States District Court
                        for the Western District of Texas

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,
DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES,
GRAVES, HIGGINSON, and COSTA, Circuit Judges. ∗

       ∗
         Judges Jolly and Davis, now Senior Judges of this court, participated in the
consideration of this en banc case. Judges Willett and Ho joined the court after this case was
submitted and did not participate in the decision.
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                                      No. 12-50217
EDITH H. JONES, Circuit Judge, joined by STEWART, Chief Judge, JOLLY,
DAVIS, SMITH, DENNIS, ** CLEMENT, OWEN, ELROD, SOUTHWICK,
HAYNES, *** HIGGINSON, and COSTA, Circuit Judges.

      This appeal returned to the court en banc following remand from the
United States Supreme Court. Prompted by the High Court, we have carefully
considered a question antecedent to the merits of the Hernandez family’s
claims against United States Customs & Border Patrol Agent Mesa: whether
federal courts have the authority to craft an implied damages action for alleged
constitutional violations in this case. See Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971)
[hereinafter Bivens]. We hold that this is not a garden variety excessive force
case against a federal law enforcement officer. The transnational aspect of the
facts presents a “new context” under Bivens, and numerous “special factors”
counsel against federal courts’ interference with the Executive and Legislative
branches of the federal government.
                                    BACKGROUND
      Because the plaintiffs’ claims were dismissed on the pleadings, the
alleged facts underlying this tragic event are taken as true. Fed. R. Civ.
P. 12(b)(6); Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013). Sergio Hernandez
was a 15-year-old Mexican citizen without family in, or other ties to, the United
States. On June 7, 2010, while at play, he had taken a position on the Mexican
side of a culvert that marks the boundary between Ciudad Juarez, Mexico, and
El Paso, Texas. The FBI reported that Agent Mesa was engaged in his law
enforcement duties when a group of young men began throwing rocks at him

      **   Judge Dennis concurs in the judgment.

      ***Judge Haynes concurs in the judgment and with the majority opinion’s conclusion
that Bivens should not extend to the circumstances of this case.
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from the Mexican side of the border. From United States soil, the agent fired
several shots toward the assailants. Hernandez was fatally wounded.
      Hernandez’s parents alleged numerous claims in a federal lawsuit
against Agent Mesa, other Border Patrol officials, several federal agencies, and
the United States government. The federal district court dismissed all claims,
but was reversed in part by a divided panel of this court. Hernandez v. United
States, 757 F.3d 249, 255 (5th Cir. 2014). The panel decision allowed only a
Bivens claim, predicated on Fifth Amendment substantive due process, to
proceed against Agent Mesa alone. Id. at 277. This court elected to rehear the
appeal en banc. Without ruling on the cognizability of a Bivens claim in the
first instance, 1 we concluded unanimously that the plaintiffs’ claim under the
Fourth Amendment failed on the merits and that Agent Mesa was shielded by
qualified immunity from any claim under the Fifth Amendment. We rejected
the plaintiffs’ remaining claims. See Hernandez v. Mesa, 785 F.3d 117, 119
(5th Cir. 2015) (en banc).
      The Supreme Court granted certioriari and heard this case in
conjunction with Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). In Abbasi, the Court
reversed the Second Circuit and refused to imply a Bivens claim against
policymaking officials involved in terror suspect detentions following the 9/11
attacks. The Court, however, remanded for reconsideration by the appeals
court whether a Bivens claim might still be maintained against a prison
warden.
      The Court’s decision in this case tagged onto Abbasi by rejecting this
court’s approach and ordering a remand for us to consider the propriety of

      1  See Hernandez v. United States, 785 F.3d 117, 128-33 (5th Cir. 2015) (en banc)
(Jones, J., concurring).
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allowing Bivens claims to proceed on behalf of the Hernandez family in light of
Abbasi’s analysis.
                                      DISCUSSION
      The plaintiffs assert that Agent Mesa used deadly force without
justification against Sergio Hernandez, violating the Fourth and Fifth
Amendments, where the fatal shot was fired across the international border.
No federal statute authorizes a damages action by a foreign citizen injured on
foreign soil by a federal law enforcement officer under these circumstances.
Thus, plaintiffs’ recovery of damages is possible only if the federal courts
approve a Bivens implied cause of action. 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.                    To make these
determinations, we review Abbasi’s pertinent discussion about “Bivens and the
ensuing cases in [the Supreme Court] defining the reach and the limits of that
precedent.” Abbasi, 137 S. Ct. at 1854.
      In Abbasi, the Court begins by explaining that when Congress passed
what is now 42 U.S.C. § 1983 in 1871, it enacted no comparable law
authorizing damage suits in federal court to remedy constitutional violations
by federal government agents. In 1971, the Bivens decision broke new ground
by authorizing such a suit for Fourth Amendment violations by federal law
enforcement officers who handcuffed and arrested an individual in his own
home without probable cause. Within a decade, the Court followed up by
allowing a Bivens action for employment discrimination, violating equal
protection under the Fifth Amendment, against a Congressman. 2 The Court

      2   Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264 (1979).

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soon after approved a Bivens claim for constitutionally inadequate inmate
medical care, violating the Eighth Amendment, against federal jailers. 3
According to the Court in Abbasi, these three cases coincided with the “ancien
regime” 4 in which “the Court followed a different approach to recognizing
implied causes of action than it follows now.” Abbasi, 137 S. Ct. at 1855.
       The “ancien regime” was toppled step by step as the Court, starting in
the late 1970s, retreated from judicially implied causes of action 5 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 (1979). Abbasi
acknowledges that the Constitution lacks as firm a basis as congressional
enactments for implying causes of action; but the “central” concern in each
instance arises from separation-of-powers principles. Abbasi, 137 S. Ct. at
1857. Consequently, the current approach renders implied Bivens claims a
“disfavored” 6 remedy. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 675, 129 S. Ct.
1937, 1948 (2009)). The Court then lists the many subsequent cases that
declined to extend Bivens under varying circumstances and proffered
constitutional violations. Id.

       3   Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468 (1980).

       4 Abbasi, 137 S. Ct. at 1855 (citing Alexander v. Sandoval, 532 U.S. 275, 287,
121 S. Ct. 1511, 1520 (2001)).

       5See Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 97 S. Ct. 926 (1977); Cort v. Ash,
422 U.S. 66, 95 S. Ct. 2080 (1975).

       6 “Indeed,” the Court states, its current approach suggests the possibility that the
analysis in the three Bivens cases providing a damage remedy “might have been different if
they were decided today.” Abbasi, 137 S. Ct. at 1856. The dissent never acknowledges that
Bivens claims are, post-Abbasi, a disfavored remedy.

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        Abbasi goes on to reiterate with an exacting description the two-part
analysis for implying Bivens claims. We turn to the two inquiries by comparing
Abbasi’s separation-of-powers considerations and its facts to the present case.
        A. New Context
        The plaintiffs assert that because the allegedly unprovoked shooting of
a civilian by a federal police officer is a prototypical excessive force claim, their
case presents no “new context” under Bivens.                     This court, including our
colleagues in dissent, disagrees. 7             The fact that Bivens derived from an
unconstitutional search and seizure claim is not determinative. The detainees
in Abbasi asserted claims for, inter alia, strip searches under both the Fourth
and Fifth Amendments, but the Supreme Court found a “new context” despite
similarities between “the right and the mechanism of injury” involved in
previous successful Bivens claims. Abbasi, 137 S. Ct. at 1859. As Abbasi
points out, the Malesko case rejected a “new” Bivens claim under the Eighth
Amendment, 8 whereas an Eighth Amendment Bivens claim was held
cognizable in Carlson; and Chappell rejected a Bivens employment
discrimination claim in the military, 9 although such a claim was allowed to
proceed in Davis v. Passman. The proper inquiry is whether “the case is
different in a meaningful way” from prior Bivens cases. Abbasi, 137 S. Ct. at
1859.
        Among the non-exclusive examples of such “meaningful” differences, the
Court points to the constitutional right at issue, the extent of judicial guidance

        7Although the dissent purports to agree this is a “new context” for Bivens purposes,
most of its reasoning about “special factors” asserts, contradictorily, that this case is “no
different” than Bivens suits against federal law enforcement officers in wholly domestic cases.

        8   Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 122 S. Ct. 515 (2001).

        9   Chappell v. Wallace, 462 U.S. 296, 103 S. Ct. 2362 (1983).
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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.
Abbasi, 137 S. Ct. at 1860-61. The Court found it an easy conclusion that there
were meaningful differences between prior Bivens claims and claims alleged in
Abbasi for unconstitutional “confinement conditions imposed on illegal aliens
pursuant to a high-level executive policy created in the wake of a major
terrorist attack on American soil.” Id. at 1860. Even more significant, the
Court decided that claims against the prison warden for “compelling”
allegations of detainee abuse and prison regulation violations also arose in a
“new context” under Bivens. Id. at 1864. Despite close parallels between
claims alleged against the warden and Carlson, the Court explained that “even
a modest extension [of Bivens] is still an extension,” id., and the Court
remanded for additional consideration of the “special factors.”
       Pursuant to Abbasi, the cross-border shooting at issue here must present
a “new context” for a Bivens claim. 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. There has been no direct judicial guidance concerning the
extraterritorial scope of the Constitution and its potential application to
foreign citizens on foreign soil. 10 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 (1990). 11 Language in Verdugo’s majority opinion strongly

       10 We will consider the potential intrusion on the Executive and Legislative branches
in detail in the next section of this opinion.

       11See also Zadvydas v. Davis, 533 U.S. 678, 693, 121 S. Ct. 2491, 2500 (2001) (“It is
well established that certain constitutional protections available to persons inside the United
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suggests that the Fourth Amendment does not apply to American officers’
actions outside this country’s borders. See Verdugo-Urquidez, 494 U.S. at 274-
75, 110 S. Ct. at 1066. In Hernandez, the Supreme Court itself described the
plaintiffs’ Fourth Amendment claims as raising “sensitive” issues. Hernandez
v. Mesa, 137 S. Ct. 2003, 2007 (2017).
      Likewise, the plaintiffs can prevail on a substantive due process Fifth
Amendment claim only if federal courts accept two novel theories. The first
would 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 cf. Graham v. Connor,
490 U.S. 386, 395, 109 S. Ct. 1865, 1871 (1989) (“[A]ll claims that law
enforcement officers have used excessive force . . . in the course of 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.”). The second theory would require the
extension of the Boumediene decision, 12 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, 553 U.S. at 771,
128 S. Ct. at 2262 (“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.”) (emphasis added). Moreover, even nine years
later, no federal circuit court has extended the holding of Boumediene either

States are unavailable to aliens outside of our geographic borders.”) (citing Verdugo-
Urquidez, 494 U.S. at 269, 110 S. Ct. at 1063; Johnson v. Eisentrager, 339 U.S. 763, 784,
70 S. Ct. 936, 947 (1950)).

      12   Boumediene v. Bush, 553 U.S. 723, 128 S. Ct. 2229 (2008).

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substantively to other constitutional provisions or geographically to locales
where the United States has neither de facto nor de jure control. Indeed, the
courts have unanimously rejected such extensions. 13
       The plaintiffs assert that because this is just a case in which one rogue
law enforcement officer engaged in misconduct on the operational level, it
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. 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. The newness of this
“new context” should alone require dismissal of the plaintiffs’ damage claims.
Nevertheless, we turn next to the “special factors” analysis assuming arguendo
that some type of constitutional claims could be conjured here.
       B. Special Factors
       The plaintiffs argue that this case involves no “special factors”—no
reasons the court should hesitate before extending Bivens.                          However

       13   Bahlul v. United States, 840 F.3d 757, 796 (D.C. Cir. 2016) (en banc) (Millett, J.,
concurring) (“That holding, however, was ‘explicitly confined [] ‘only’ to the extraterritorial
reach of the Suspension Clause,’ and expressly ‘disclaimed any intention to disturb existing
law governing the extraterritorial reach of any constitutional provisions, other than the
Suspension Clause.’” (quoting Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir. 2009) (quoting
Boumediene, 553 U.S. at 795, 128 S. Ct. at 2275-76))), cert. denied, 138 S. Ct. 313 (2017); Al
Bahlul v. United States, 767 F.3d 1, 33 (D.C. Cir. 2014) (en banc) (Henderson, J., concurring)
(“Whether Boumediene in fact portends a sea change in the extraterritorial application of the
Constitution writ large, we are bound to take the Supreme Court at its word when it limits
its holding to the Suspension Clause.” (citations omitted)); Ali v. Rumsfeld, 649 F.3d 762, 771
(D.C. Cir. 2011) (“[The Court] explicitly confined its constitutional holding ‘only’ to the
extraterritorial reach of the Suspension Clause and disclaimed any intention to disturb
existing law governing the extraterritorial reach of any constitutional provisions, other than
the Suspension Clause.” (citations omitted)); Igartúa v. United States, 626 F.3d 592, 600 (1st
Cir. 2010) (“The Boumediene court was concerned only with the Suspension Clause . . . not
with . . . any other constitutional text.”).
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remarkable this position may seem, it is unremarkable that the plaintiffs hold
it. Indeed, they must. The presence of “special factors” precludes a Bivens
extension. Given Abbasi’s elucidation of the “special factors” inquiry, there is
more than enough reason for this court to stay its hand and deny the
extraordinary remedy that the plaintiffs seek.
      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.” Abbasi, 137 S. Ct. at 1857.
Before Abbasi, the Court had instructed lower courts to perform “the kind of
remedial determination that is appropriate for a common-law tribunal.” See,
e.g., Wilkie v. Robbins, 551 U.S. 537, 550, 127 S. Ct. 2588, 2598 (2007)
(emphasis added) (quoting Bush v. Lucas, 462 U.S. 367, 378, 103 S. Ct. 2404,
2411 (1983)). Underscoring the Court’s steady retreat from the “ancien regime”
discussed above, that language appears nowhere in Abbasi. Instead, Abbasi
instructs 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-
58. In light of this guidance, the question for this court is not whether this
case is distinguishable from Abbasi itself—it certainly is—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. To begin with, this extension of Bivens
threatens the political branches’ supervision of national security.          “The
Supreme Court has never implied a Bivens remedy in a case involving the
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military, national security, or intelligence.” Doe v. Rumsfeld, 683 F.3d 390,
394 (D.C. Cir. 2012). In Abbasi, the Court stressed that “[n]ational-security
policy is the prerogative of the Congress and the President.” Abbasi, 137 S. Ct.
at 1861. The plaintiffs 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. (citations omitted).          Of course, the defining
characteristic of this case is that it is not domestic. National-security concerns
are hardly “talismanic” where, as here, border security is at issue. 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.”).
       In particular, the threat of Bivens liability could undermine the Border
Patrol’s ability to perform duties essential to national security. Congress has
expressly charged the Border Patrol with “deter[ring] and prevent[ing] the
illegal entry of terrorists, terrorist weapons, persons, and contraband.”
6 U.S.C. § 211(e)(3)(B). Although members of the 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. 14      In a similar context—airport security—the Third Circuit
recently denied a Bivens remedy for a TSA agent’s alleged constitutional

       14 Given the transnational context of this case, denying a remedy here does not, as the
plaintiffs suggest, repudiate Bivens claims where constitutional violations by the Border
Patrol are wholly domestic. See, e.g., De La Paz v. Coy, 786 F.3d 367, 374 (5th Cir. 2015)
(deferring to prior Fifth Circuit decisions “to the extent that they permit Bivens actions
against immigration officers who deploy unconstitutionally excessive force when detaining
immigrants on American soil”).

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violations. Vanderklok v. United States, 868 F.3d 189, 207-209 (3d Cir. 2017).
Relying on Abbasi, the Third Circuit’s analysis is instructive:
       [The plaintiff] asks us 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. The threat of damages liability could indeed
       increase the probability that a TSA agent would hesitate in
       making split-second decisions about suspicious passengers. In
       light of Supreme Court precedent, past and very recent, that is
       surely a special factor that gives us pause.

Id. at 207. The same logic applies here. 15 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.” Considering the
“systemwide” impact of this Bivens extension, there are “sound reasons to
think Congress might doubt [its] efficacy.” Abbasi, 137 S. Ct. at 1858.
       Extending Bivens in this context also risks interference with foreign
affairs and diplomacy more generally. This case is hardly sui generis: the
United States government is always responsible to foreign sovereigns when
federal officials injure foreign citizens on foreign soil. These are often delicate
diplomatic matters, and, as such, they “are rarely proper subjects for judicial
intervention.” Haig v. Agee, 453 U.S. 280, 292, 101 S. Ct. 2766, 2774 (1981).
In fact, in 2014 the United States and Mexican governments established the
joint Border Violence Prevention Council as a forum for addressing these sorts
of issues. 16   The incident involving Agent Mesa initiated serious dialogue

       15 Although the dissent contends that the Vanderklok court focused on the lack of TSA
law enforcement training, we believe public safety was the court’s overriding concern. See
Vanderklok, 868 F.3d at 209 (“Ultimately, the role of the TSA in securing public safety is so
significant that we ought not create a damages remedy in this context.”).

       16 DHS, Written Testimony for a H. Comm. on Oversight & Gov’t Reform Hearing
(Sept. 9,  2015),   https://www.dhs.gov/news/2015/09/09/written-testimony-dhs-southern-
border-and-approaches-campaign-joint-task-force-west.
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between the two sovereigns, with the United States refusing Mexico’s request
to extradite Mesa but resolving to “work with the Mexican government within
existing mechanisms and agreements to prevent future incidents.” 17
       Given the dialogue between Mexico and the United States, the plaintiffs
are wrong to suggest that Mexico’s support for a new Bivens remedy obviates
foreign affairs concerns. It is not surprising that Mexico, having requested
Mesa’s extradition, now supports a damages remedy against him. But the
Executive Branch denied extradition and refused to indict Agent Mesa
following a thorough investigation. 18 It would undermine Mexico’s respect for
the validity of the Executive’s prior determinations if, pursuant to a Bivens
claim, a federal court entered a damages judgment against Agent Mesa. In
any event, diplomatic concerns “involve[ ] a host of considerations that must
be weighed and appraised”—a sign that they must be “committed to those who
write the laws rather than those who interpret them.” Abbasi, 137 S. Ct. at
1857 (citations omitted).
       Congress’s failure to provide a damages remedy in these circumstances
is an additional factor counseling hesitation. Abbasi emphasized that
Congress’s silence may be “relevant[] and . . . telling,” especially where
“Congressional interest” in an issue “has been frequent and intense.” Id. at
1862 (citations omitted).           It is “much more difficult to believe that

       17DOJ, Federal Officials Close Investigation into the Death of Sergio Hernandez-
Guereca (Apr. 27, 2012), https://www.justice.gov/opa/pr/federal-officials-close-investigation-
death-sergio-hernandez-guereca.

       18See Hernandez, 785 F.3d at 132 (Jones, J., concurring) (“Numerous federal agencies,
including the FBI, the Department of Homeland Security’s Office of the Inspector General,
the Justice Department’s Civil Rights Division, and the United States Attorney’s Office,
investigated this incident and declined to indict Agent Mesa or grant extradition to Mexico
under 18 U.S.C. § 3184.”).
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congressional inaction was inadvertent” given the increasing national policy
focus on border security. Abbasi, 137 S. Ct. at 1862 (citations omitted).
       Relevant statutes confirm that Congress’s failure to provide a federal
remedy was intentional. For instance, in section 1983, Congress expressly
limited damage remedies to “citizen[s] of the United States or other person[s]
within the jurisdiction thereof.” 42 U.S.C. § 1983. Given that Bivens is a
judicially implied version of section 1983, it would violate separation-of-powers
principles if the implied remedy reached further than the express one.
Likewise, under the Federal Tort Claims Act—a law that comprehensively
waives federal sovereign immunity to provide damages remedies for injuries
inflicted by federal employees—Congress specifically excluded “[a]ny claim
arising in a foreign country.” 28 U.S.C. § 2680(k). Congress also exempted
federal officials from liability under the Torture Victim Protection Act of 1991.
See 28 U.S.C. §§ 2671 et seq. 19         Taken together, these statutes represent
Congress’s repeated refusals to create private rights of action against federal
officials for injuries to foreign citizens on foreign soil. 20 It is not credible that
Congress would favor the judicial invention of those rights. 21
       Nor, under Abbasi, does the plaintiffs’ lack of a damages remedy favor
extending Bivens. The Supreme Court has held that “even in the absence of

       19 President George H.W. Bush stressed this interpretation of the TVPA when signing
the legislation. See Statement on Signing the Torture Victim Protection Act of 1991, Mar. 12,
1992), http://www.presidency.ucsb.edu/ws/index.php?pid=20715.

       20 Of course, there are some very narrow exceptions. See, e.g., Victims of Trafficking
and Violence Protection Act of 2000, 18 U.S.C. §§ 1595, 1596, 3271 (creating private right of
action for noncitizens against federal employees who engage in sex trafficking outside the
United States).

       21 Congress has also repeatedly authorized the payment of damages for injuries to
aliens in foreign countries through limited administrative claims procedures. See, e.g.,
22 U.S.C. § 2669-1. The existence of such procedures is additional evidence that Congress’s
failure to provide a remedy in this instance is intentional.

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an alternative” remedy, courts should not extend Bivens if any special factors
counsel hesitation. Wilkie, 551 U.S. at 550, 127 S. Ct. at 2598. Thus, the
absence of a remedy is only significant because the presence of one precludes a
Bivens extension. Here, the absence of a federal remedy does not mean the
absence of deterrence. Abbasi acknowledges the “persisting concern [ ] that
absent a Bivens remedy there will be insufficient deterrence to prevent officers
from violating the Constitution.” Abbasi, 137 S. Ct. at 1863. For cross-border
shootings like this one, however, criminal investigations and prosecutions are
already a deterrent.       While it is true that numerous federal agencies
investigated Agent Mesa’s conduct and decided not to bring charges, the DOJ
is currently prosecuting another Border Patrol agent in Arizona for the cross-
border murder of a Mexican citizen. See United States v. Swartz, No. 15-CR-
1723 (D. Ariz. Sept. 23, 2015). The threat of criminal prosecution for abusive
conduct is not hollow. In some instances, moreover, a state-law tort claim may
be available to provide both deterrence and damages.                That claim is
unavailable here because the DOJ certified that Agent Mesa acted within the
scope of his employment, and so the Westfall Act protects him from liability.
See 28 U.S.C. § 2679(b)(1), (d). The plaintiffs concede that Agent Mesa was
acting within the scope of his employment. Regardless, Abbasi makes clear
that, when there is “a balance to be struck” between countervailing policy
considerations like deterrence and national security, “[t]he proper balance is
one for the Congress, not the Judiciary, to undertake.” Abbasi, 137 S. Ct. at
1863.
        Finally, the extraterritorial aspect of this case is itself a special factor
that underlies and aggravates the separation-of-powers issues already
discussed. The plaintiffs argue that extraterritoriality cannot constitute a
special factor because this would multiply extraterritoriality’s significance.
But this misunderstands the Bivens inquiry and misreads Supreme Court
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                                 No. 12-50217
precedent. The plaintiffs’ argument relies on Davis v. Passman, in which the
defendant argued that his conduct was immunized by the Speech or Debate
Clause and, alternatively, that the Clause was a “special factor” for Bivens
purposes. The Court held that the scope of the immunity and weight of the
special factor were “coextensive.” See Davis, 442 U.S. at 246, 99 S. Ct. at 2277.
In other words, if the Clause did not immunize the defendant’s conduct, then
it was not a special factor.     Similarly, the plaintiffs here suggest that
extraterritoriality is not a “special factor” if the Constitution applies
extraterritorially. This argument conflates the applicability of a constitutional
immunity with the scope of a constitutional right, and thereby turns the Bivens
inquiry upside down. Bivens remedies are not “coextensive” with the
Constitution’s protections. Indeed, in United States v. Stanley, the Supreme
Court rejected a similar Davis-based argument, finding it “not an application
but a repudiation of the ‘special factors’ limitation.”     483 U.S. 669, 686,
107 S. Ct. 3054, 3065 (1987).
      Plaintiffs also suggest that relying on extraterritoriality as an indicator
of a “new context” and as a “special factor” double counts the significance of
extraterritoriality and stacks the deck against extending Bivens. But Abbasi
explicitly states that one rationale for finding a “new context” is “the presence
of potential special factors.” Abbasi, 137 S. Ct. at 1860 (emphasis added). To
the extent that this court double counts the significance of extraterritoriality,
the Supreme Court has not foreclosed our doing so.
      Indeed, the novelty and uncertain scope of an extraterritorial Bivens
remedy counsel hesitation. As the Eleventh Circuit recently averred, the legal
theory itself may constitute a special factor if it is “doctrinally novel and
difficult to administer.”   Alvarez v. U.S. Immigration & Customs Enf’t,
818 F.3d 1194, 1210 (11th Cir. 2016), cert. denied, 137 S. Ct. 2321 (2017). An
extraterritorial Bivens extension is “doctrinally novel.” The Supreme Court
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                                       No. 12-50217
“has never created or even favorably mentioned a non-statutory right of action
for damages on account of conduct that occurred outside the borders of the
United States.” Vance v. Rumsfeld, 701 F.3d 193, 198-99 (7th Cir. 2012) (en
banc). Nor has any court of appeals extended Bivens extraterritorially. See
Meshal v. Higgenbotham, 804 F.3d 417, 424-25 (D.C. Cir. 2015), cert. denied,
137 S. Ct. 2325 (2017).          Extraterritoriality, moreover, involves a host of
administrability concerns, making it impossible to assess the “impact on
governmental operations systemwide.” Abbasi, 137 S. Ct. at 1858. 22
       But novelty is by no means the only problem with an extraterritorial
Bivens remedy. The presumption against extraterritoriality accentuates the
impropriety of extending private rights of action to aliens injured abroad.
According to the Supreme Court, “[t]he presumption against extraterritorial
application 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.” Kiobel v. Royal Dutch Petroleum Co.,
569 U.S. 108, 116, 133 S. Ct. 1659, 1664 (2013).                  Even when a statute’s
substantive provisions do apply extraterritorially, a court must “separately
apply the presumption against extraterritoriality” when it determines whether
to provide a private right of action for damages. RJR Nabisco, Inc. v. European
Cmty., 136 S. Ct. 2090, 2106 (2016). By extension, even if the Constitution
applies extraterritorially, a court should hesitate to provide an extraterritorial

       22  The critical administrability issue, of course, is the uncertain scope of an
extraterritorial Bivens claim. A court could attempt to tailor its holding to the facts of this
case, thereby making sure the plaintiffs win—at least, at the motion to dismiss stage. But
that will hardly deter the next plaintiff in the next case. During enforcement operations on
the U.S.-Mexico border, it is not unusual for Border Patrol officers to be shot at or otherwise
attacked from the Mexico side during patrols on land, on water, and in the air. If the
dissenters’ position here prevails, whenever Border Patrol officers return fire in self-defense,
and someone gets hurt in Mexico, Bivens suits will follow. Moreover, nothing written by the
dissent herein assures that if Bivens should apply here, no case will be filed against the
Nevada-based operator of a drone flown far beyond our borders.
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                                  No. 12-50217
damages remedy with “potential for international friction beyond that
presented by merely applying U.S. substantive law to that foreign conduct.”
Id. at 2106.
      The D.C. Circuit squarely addressed the issue of extraterritoriality in
the Bivens context and concluded that it constituted a “special factor.” See
Meshal, 804 F.3d at 425-26. Like this case, the D.C. Circuit’s decision in
Meshal v. Higgenbotham involved a challenge to “the individual actions of
federal law enforcement officers” for an injury that occurred on foreign soil. Id.
at 426. Refusing to extend Bivens, the court noted that “the presumption
against extraterritoriality is a settled principle that the Supreme Court applies
even in considering statutory remedies.” Id. at 425. Given this presumption,
the court concluded that extraterritoriality was a special factor. Concurring,
Judge Kavanaugh stressed that “[i]t would be grossly anomalous . . . to apply
Bivens extraterritorially when we would not apply an identical statutory cause
of action for constitutional torts extraterritorially.” Id. at 430 (Kavanaugh, J.,
concurring). We agree. Not only would it be “anomalous,” it would contravene
the separation-of-powers concerns that lie at the heart of the “special factors”
concept.
      Having weighed the factors against extending Bivens, we conclude that
this is not a close case. Even before Abbasi clarified the “special factors”
inquiry, we agreed with our sister circuits that “[t]he only relevant threshold—
that a factor ‘counsels hesitation’—is remarkably low.” See De La Paz v. Coy,
786 F.3d 367, 378 (5th Cir. 2015) (quoting Arar v. Ashcroft, 585 F.3d 559, 574
(2d Cir. 2009) (en banc)). Here, extending Bivens would interfere with the
political branches’ oversight of national security and foreign affairs. It would
flout Congress’s consistent and explicit refusals to provide damage remedies
for aliens injured abroad. And it would create a remedy with uncertain limits.
In its remand of Hernandez, the Supreme Court chastened this court for ruling
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                                 No. 12-50217
on the extraterritorial application of the Fourth Amendment because the issue
is “sensitive and may have consequences that are far reaching.” Hernandez,
137 S. Ct. 2003, 2007 (2017). Similar “consequences” are dispositive of the
“special factors” inquiry. The myriad implications of an extraterritorial Bivens
remedy require this court to deny it.
      For these reasons, the district court’s judgment of dismissal is
AFFIRMED.

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                                       No. 12-50217
JAMES L. DENNIS, Circuit Judge, concurring in the judgment:
       In my view, we need not decide the difficult question of whether a Bivens
remedy should be available under the circumstances of this case because,
under Supreme Court precedent, Agent Mesa is entitled to qualified immunity.
I find compelling the plaintiffs’ arguments that Hernández was entitled to
protections under the Fourth Amendment in light of Boumediene v. Bush, 553
U.S. 723 (2008), and the circumstances surrounding the border area where
Mesa shot and killed him. See Hernandez v. Mesa, 137 S. Ct. 2003, 2008–11
(2017) (Breyer, J., joined by Ginsburg, J., dissenting). But the extraterritorial
application of these protections to Hernández was not clearly established at
the time of Mesa’s tortious conduct. Mesa is therefore entitled to qualified
immunity. See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (“The doctrine of
qualified immunity shields officials from civil liability so long as their conduct
does not violate clearly established statutory or constitutional rights.”
(internal quotation marks omitted)).
       The plaintiffs contend that questions about the extraterritorial
application of constitutional protections do not preclude Mesa’s liability. After
all, according to the complaint, Mesa essentially committed a cold-blooded
murder. 1 Surely every reasonable officer would know that Mesa’s conduct was
unlawful, the plaintiffs argue.          While that is a fair point, I believe this
argument is foreclosed by Supreme Court precedent, which holds that the right

       1 The majority opinion states, “The FBI reported that . . . a group of young men began
throwing rocks at [Mesa] from the Mexican side of the border” and asserts that Mesa “fired
several shots toward the assailants.” Maj. Op. at 2. That statement is not compatible with
the plaintiffs’ complaint in this case, which alleges that Hernández was “standing safely and
legally” on Mexican soil, “defenseless,” “offering no resistance,” and not threatening Mesa in
any way. The complaint also alleges that the FBI’s statement—before discovering that a
video of the incident existed—that Mesa fired at rock-throwers who surrounded him was “a
false and reprehensible cover-up statement.”
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                                     12-50217
giving rise to the claim—here, Hernández’s Fourth Amendment rights—must
be clearly established. See Davis v. Scherer, 468 U.S. 183, 197 (1984).
      In Davis v. Scherer, the Supreme Court held, “A plaintiff who seeks
damages for violation of constitutional or statutory rights may overcome the
defendant official’s qualified immunity only by showing that those rights were
clearly established at the time of the conduct at issue.” Id. (emphasis added).
The Court stated that “officials can act without fear of harassing litigation only
if they reasonably can anticipate when their conduct may give rise to liability
for damages.” Id. at 195. In light of Davis, the plaintiffs’ argument that Mesa
forfeited his qualified immunity because his conduct was shockingly unlawful
cannot succeed. I am therefore compelled to concur in affirming the district
court’s dismissal of the plaintiffs’ claims.

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                                No. 12-50217

HAYNES, Circuit Judge, concurring:
      I concur in the judgment and with the majority opinion’s conclusion that
Bivens should not extend to the circumstances of this case. I write separately
to note that when we previously heard this case en banc, it was consolidated
with two other appeals, which alleged issues arising under the Alien Tort
Statute and Federal Tort Claims Act. See Hernandez v. United States, 785
F.3d 117, 139 (5th Cir. 2015) (Haynes, J., concurring). Those appeals and
claims are not before us today, and they need not be addressed to resolve the
Bivens claim against Mesa.

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                                  No. 12-50217
EDWARD C. PRADO, Circuit Judge, joined by GRAVES, Circuit Judge,
dissenting:

      Today’s en banc majority denies Sergio Hernandez’s parents a Bivens
remedy for the loss of their son at the hands of a United States Border Patrol
agent. The majority asserts that the transnational nature of this case presents
a new context under Bivens and that special factors counsel against this
Court’s interference. While I agree that this case presents a new context, I
would find 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. I respectfully dissent.
      I do not take issue with the majority’s framework for analyzing whether
there are special factors counseling hesitation. “[S]eparation-of-powers
principles are or should be central to the analysis.” Ziglar v. Abbasi, 137 S. Ct.
1843, 1857 (2017). And the majority’s analysis purports to consider these
principles by appropriately asking “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.” See id. at 1857–58. However,
in conducting this analysis, the majority is quickly led astray from the familiar
circumstances of this case by empty labels of national security, foreign affairs,
and extraterritoriality. These labels—as we say in Texas—are all hat, no
cattle.
      The majority repeatedly attempts to frame this case around the issue of
whether    aliens    injured   abroad   can   pursue   Bivens   remedies.    That
characterization, however, overlooks the critical who, what, where, when, and
how of the lead actor in this tragic narrative. This case involves one federal
officer “engaged in his law enforcement duties” in the United States who shot
and killed an unarmed, fifteen-year-old Mexican boy standing a few feet away.
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                                       No. 12-50217
The Supreme Court in Abbasi went to great lengths to indicate support for the
availability of a Bivens remedy in exactly the circumstances presented here:
an instance of individual law enforcement overreach. As the Court recently
reaffirmed in no uncertain terms, Bivens is “settled law . . . in [the] common
and recurrent sphere of law enforcement.” Abbasi, 137 S. Ct. at 1857. For the
following reasons, I would retain Bivens in that common sphere and recognize
a remedy for this senseless and arbitrary cross-border shooting at the hands of
a federal law enforcement officer. 1
       The Supreme Court directed this Court “to consider how the reasoning
and analysis in Abbasi may bear on this case,” so that is where I begin. See
Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017). In Abbasi, aliens detained for
immigration violations following the September 11 attacks brought a class
action suit against high-level federal executive officials and detention facility
wardens. 137 S. Ct. at 1852–54. The detainees alleged that they had been
detained in harsh conditions, including that they were confined in tiny cells for
over 23 hours a day, subjected to regular strip searches, denied basic hygiene
products and most forms of communication, and subjected to regular verbal
and physical abuse by guards. Id. at 1853. Detainee-plaintiffs brought their
Bivens claims alleging that the detention and policies authorizing it violated
their Fourth and Fifth Amendment rights. Id. at 1853–54. After finding the
case presented a new Bivens context because it challenged “confinement

       1 While the majority’s opinion casts aspersions on the viability of plaintiffs’ Fifth
Amendment claim, I continue to disagree. As I discussed at length in my original panel
majority opinion and in my original en-banc concurrence, a noncitizen injured outside the
United States as the result of arbitrary official conduct by a law enforcement officer located
in the United States should be entitled to invoke the protections provided by the Fifth
Amendment. See Hernandez v. United States, 757 F.3d 249, 267–72 (5th Cir. 2014) (original
panel opinion); Hernandez v. United States, 785 F.3d 117, 134–39 (5th Cir. 2015) (en banc)
(Prado, J., concurring). However, I focus here only on the “antecedent” question regarding
the availability of a Bivens remedy. See Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017).
                                             24
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                                  No. 12-50217
conditions imposed on illegal aliens pursuant to a high-level executive policy
created in the wake of a major terrorist attack”—a far cry from the three Bivens
cases the Court had approved in the past—the Court determined that several
special factors counseled hesitation that precluded a Bivens remedy against
the executive officials. See id. at 1860–63.
      The Supreme Court’s analysis of four special factors in Abbasi is
particularly relevant given the vastly different circumstances presented in this
case. First, the Court took issue with the fact that the detainees sought to hold
high-level federal executive officials liable for the unconstitutional activity of
their subordinates. See Abbasi, 137 S. Ct. at 1860. The Court warned that
“Bivens is not designed to hold officers responsible for the acts of their
subordinates.” Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Because
“[t]he purpose of Bivens is to deter the officer,” a Bivens claim should be
“brought against the individual official for his or her own acts, not the acts of
others.” Id. (quoting F.D.I.C. v. Meyer, 510 U.S. 471, 485 (1994)). Relatedly, the
Abbasi Court found it problematic that that the detainees challenged a broad
governmental policy, specifically the government’s response to the September
11 attacks. Id. at 1860–61. The Court noted that “a Bivens action is not ‘a
proper vehicle for altering an entity’s policy.’” Id. at 1860 (quoting Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 74 (2001)). Third, the Court disapproved of the
fact that the detainees’ claims challenged “more than standard ‘law
enforcement operations.’” Id. at 1861 (quoting United States v. Verdugo–
Urquidez, 494 U.S. 259, 273 (1990)). Specifically, the Court found the
detainees’ claims involved “major elements of the Government’s whole
response to the September 11 attacks, thus . . . requiring an inquiry into
sensitive issues of national security.” Id. Finally, the Court found it of “central
importance” that Abbasi was not a “damages or nothing” case. Id. at 1862. In
contrast to suits challenging “individual instances of discrimination or law
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                                       No. 12-50217
enforcement overreach,” the Abbasi plaintiffs challenged “large-scale policy
decisions concerning the conditions of confinement imposed on hundreds of
prisoners” which could be remedied with injunctive and habeas relief. Id. at
1862–63.
       Not only are all four of these special factors notably absent here, but this
case also presents the limited circumstances in which Abbasi indicated a
Bivens remedy would exist. First, Hernandez’s parents do not seek to hold any
high-level officials liable for the acts of their subordinates. Instead, and strictly
comporting with Bivens, plaintiffs are suing an individual federal agent for his
own actions. See Abbasi, 137 S. Ct. at 1860 (“[A] Bivens claim is brought
against the individual official for his or her own acts.”). Relatedly, in suing an
individual officer, Hernandez’s parents do not challenge or seek to alter any
governmental policy. To the contrary, the constitutional constraints
Hernandez’s parents seek mirror existing Executive Branch policy for Border
Patrol agents. Department of Homeland Security regulations and guidelines
already require Border Patrol agents to adhere to constitutional standards for
the use of lethal force, regardless of the subject’s location or nationality. 2
Furthermore, as a case against a single federal officer, this suit would not
require unnecessary inquiry or discovery into governmental deliberations or
policy-making—certainly not any more than any other regularly permissible
Bivens suit alleging unconstitutional use of force by a Border Patrol agent. See,

       2 The regulations provide that “[d]eadly force may be used only when [a Customs and
Border Protection (“CBP”) officer] has reasonable grounds to believe that such force is
necessary to protect the designated immigration officer or other persons from the imminent
danger of death or serious physical injury.” 8 C.F.R. § 287.8(a)(2)(ii); see also United States
Customs and Border Protection, Use of Force Policy, Guidelines and Procedures Handbook 1
(2014), available at https://www.cbp.gov/sites/default/files/documents/UseofForcePolicyHand
book.pdf (“CBP policy on the use of force by Authorized Officers/Agents is derived from
constitutional law, as interpreted by federal courts in cases such as Graham v. Connor, 490
U.S. 386 (1989) and Tennessee v. Garner, 471 U.S. 1 (1985), federal statutes and applicable
DHS and CBP Policies.”).
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                                        No. 12-50217
e.g., Martinez–Aguero v. Gonzalez, 459 F.3d 618, 620–25 (5th Cir. 2006);
Valdez-Ortega v. Does, No. 92-7772, 1993 WL 560259, at *1–2 (5th Cir. Dec.
27, 1993). Third, this case has nothing to do with terrorism, nor does it involve
a high-level governmental response to a major national security event. Rather,
plaintiffs merely challenge “standard ‘law enforcement operations.’” See
Abbasi, 137 S. Ct. at 1861. While the majority attempts to link this case to
border security, which I address separately below, there is no question that a
case which involves only one Border Patrol agent and a fifteen-year-old boy is
a far cry from Abbasi, which involved broad and sensitive national security
policies following the deadliest terrorist attack in U.S. history. Finally, unlike
the detainees in Abbasi, who had several alternative remedies including
habeas relief, this is a “damages or nothing” case for Hernandez’s parents. See
id. at 1862. It is uncontested that plaintiffs find no alternative relief in Mexican
law, state law, the Federal Tort Claims Act (“FTCA”), the Alien Tort Statute
(“ATS”), or federal criminal law 3 for their tragic loss. Nor can injunctive or
habeas relief redress the irreparable loss of life here. Indeed, individual

       3  After an investigation, the Department of Justice declined to seek criminal or civil
charges against Agent Mesa. See Dept. of Justice, Office of Public Affairs, Federal Officials
Close Investigation into Death of Sergio Hernandez–Guereca (Apr. 27, 2012), available at
http://www.justice.gov/opa/pr/federal-officials-close-investigation-death-sergio-hernandez-
guereca. This inaction does not appear to be unusual. According to a December 2013 report
by the Arizona Republic, “[t]he Department of Justice has not been able to show any cases in
which it recommended civil or criminal charges against a CBP agent or officer who killed in
the line of duty in at least the past six years,” and “[a]n extensive review by The Republic also
found no instances.” Bob Ortega & Rob O’Dell, Deadly Border Agent Incidents Cloaked in
Silence,     Ariz.      Republic     (Dec.     16,     2013,     9:58    PM),     available    at
http://www.azcentral.com/news/politics/articles/20131212arizona-border-patrol-deadly-
force-investigation.html?nclick_check=1. Additionally, the United States government
refused to extradite Agent Mesa to Mexico for criminal prosecution. Brief for the Gov’t of the
United Mexican States as Amicus Curiae in Support of Appellants on Rehearing En Banc, at
8 (Jan. 15, 2015). The fact that one Border Patrol agent in Arizona is currently being
prosecuted for a cross-border murder provides little comfort to Hernandez’s parents and little
deterrence for future shootings—particularly if we foreclose any hope of a damages remedy
here.
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                                  No. 12-50217
instances of law enforcement overreach—as alleged here—are by “their very
nature . . . difficult to address except by way of damages actions after the fact.”
Id. Given that a Bivens cause of action is plaintiffs’ only available remedy,
compensatory relief by way of Bivens is both necessary and appropriate in this
case. See Bivens, 403 U.S. at 407 (Harlan, J., concurring) (“The question then,
is, as I see it, whether compensatory relief is ‘necessary’ or ‘appropriate’ to the
vindication of the interest asserted.”).
      The special factors identified by the majority do not convince me that the
Judiciary is not “well suited . . . to consider and weigh the costs and benefits of
allowing a damages action to proceed”—particularly given the relatively
straight-forward events here. See Abbasi, 137 S. Ct. at 1858. I disagree that
recognizing a Bivens remedy in this case “threatens the political branches’
supervision of national security.” According to the majority, national security
is implicated because the events giving rise to this suit took place at the border,
thereby affecting border security and the operations of the Border Patrol.
Relying on the Third Circuit’s rejection of Bivens liability in the airport
security context for a First Amendment retaliation claim, the majority also
reasons that implying a Bivens remedy in the transnational context “increases
the likelihood that Border patrol agents will ‘hesitate in making split second
decisions.’” See Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017).
      While the shooting in this case took place at the border, it does not follow
that border security and the operations of the Border Patrol are significantly
implicated. As the original panel majority noted, this case “involves questions
of precisely Bivens-like domestic law enforcement and nothing more.”
Hernandez v. United States, 757 F.3d 249, 276 (5th Cir. 2014). Plaintiffs allege
that an individual Border Patrol agent while on duty on U.S. soil shot and
killed an unarmed fifteen-year-old boy. If recognizing a Bivens remedy in this
context implicates border security or the Border Patrol’s operations, so too
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                                  No. 12-50217
would any suit against a Border Patrol agent for unconstitutional actions
taken in the course and scope of his or her employment. Yet, as the majority
recognizes, Border Patrol agents are unquestionably subject to Bivens suits
when they commit constitutional violations on U.S. soil. See, e.g., De La Paz v.
Coy, 786 F.3d 367, 374 (5th Cir. 2015); Martinez–Aguero, 459 F.3d at 620–25;
Valdez-Ortega, 1993 WL 560259, at *1–2. It make little sense to argue that a
suit against a Border Patrol agent who shoots and kills someone standing a
few feet beyond the U.S. border implicates border and national security issues,
but at the same time contend that those concerns are not implicated when the
same agent shoots someone standing a few feet inside the border.
      Moreover, the practical rationale given by the majority for not
recognizing a Bivens remedy—that Border Patrol agents will hesitate making
split-second decisions—is one more commonly and more appropriately invoked
in the qualified immunity context. See Graham, 490 U.S. at 396–97 (holding
that the excessive force qualified immunity analysis “must embody allowance
for the fact that police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular situation”); see also
Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 582 (5th Cir. 2009)
(“Importantly, qualified immunity purposefully shields police officers’ split-
second decisions made without clear guidance from legal rulings.”). Given that
the qualified immunity analysis already incorporates this practical concern, it
is odd to invoke it at this stage, particularly when such concerns could be raised
in nearly any Bivens suit against a federal law enforcement officer. See Bivens,
403 U.S. at 396 (failing to raise concern about hesitation by federal agents in
tense search and arrest situations and holding that “no special factors
counsel[ed] hesitation”). Indeed, although the majority does not reach the issue

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                                 No. 12-50217
of qualified immunity, Agent Mesa has and could continue to raise it as a
possible defense to the constitutional claims against him.
      Finally, I am troubled by the majority’s reliance on a First Amendment
retaliation case to raise this “national security” concern. In Vanderklok, the
Third Circuit considered whether under Bivens “a First Amendment claim
against a TSA employee for retaliatory prosecution even exists in the context
of airport security screenings.” Vanderklok, 868 F.3d at 194. While the court
refused to recognize such a claim in light of the new context presented and
various special factors counseling hesitation, one such special factor the court
found particularly relevant was the fact that “TSA employees typically are not
law enforcement officers and do not act as such.” Id. at 208. The court noted
that “TSA employees are not trained on issues of probable cause, reasonable
suspicion, and other constitutional doctrines that govern law enforcement
officers.” Id. Here, by contrast, Agent Mesa is a federal law enforcement officer
well-trained on relevant constitutional doctrines and permissible use of force.
See generally United States Customs and Border Protection, Use of Force
Policy, Guidelines and Procedures Handbook (2014). In light of Agent Mesa’s
status as a federal law enforcement officer, the practical concerns raised in
Vanderlock pertaining to non-officer TSA employees in the First Amendment
retaliation context have little bearing here.
      Indeed, Abbasi itself cautions against taking the very path the majority
errantly takes in this case. “[N]ational-security concerns must not become a
talisman used to ward off inconvenient claims—a ‘label’ used to ‘cover a
multitude of sins.’” Abbasi, 137 S. Ct. at 1862 (quoting Mitchell v. Forsyth, 472
U.S. 511, 523 (1985)). As one prominent legal scholar has warned, “national
security” justifications are “increasingly becom[ing] the rule in contemporary
civil litigation against government officers” and threaten to “dilute the
effectiveness of judicial review as a deterrent for any and all unlawful
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government action—not just those actions undertaken in ostensibly in defense
of the nation.” Steven I. Vladeck, The New National Security Canon, 61 Am. U.
L. Rev. 1295, 1330 (2012). When one looks to substantiate the invocation of
national security here, one is left with the impression that this case more
closely resembles ordinary civil litigation against a federal agent than a case
involving a true inquiry into sensitive national security and military affairs,
which are properly committed to the Executive Branch. See Abbasi, 137 S. Ct.
at 1861. On this record, I would not so readily abdicate our judicial role given
the fundamental rights at stake here. See Hamdi v. Rumsfeld, 542 U.S. 507,
536 (2004) (“Whatever power the United States Constitution envisions for the
Executive in its exchanges with other nations or with enemy organizations in
times of conflict, it most assuredly envisions a role for all three branches when
individual liberties are at stake.”).
      The majority also invokes concerns about interference with foreign
affairs and diplomacy as a special factor counseling hesitation. Asserting that
the United States is always responsible to foreign sovereigns when federal
officials injure foreign citizens on foreign soil, the majority argues that
extending a Bivens remedy here implicates “delicate diplomatic matters.”
However, isn’t the United States equally answerable to foreign sovereigns
when federal officials injure foreign citizens on domestic soil? Again, the
majority’s argument proves too much. As plaintiffs persuasively argue, if there
is a “U.S. foreign policy interest [implicated] in granting or denying a Bivens
claim to foreign nationals, it is difficult to see how that interest would apply
only if the injury occurred abroad.” It also bears repeating that Agent Mesa’s
actions took place within the United States.
      I also fail to see how recognizing a Bivens remedy here would undermine
Mexico’s respect for the Executive Branch or create tension between Executive
and Judicial determinations. No case holds that a court must first consider
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                                   No. 12-50217
whether the Executive Branch has found evidence of criminality before
determining whether a civil Bivens remedy exists for a given constitutional
violation. Further, the majority fails to acknowledge that distinct standards of
proof govern civil and criminal proceedings making different outcomes in these
proceedings hardly the stuff of an international diplomatic crisis. See
Addington v. Texas, 441 U.S. 418, 423–24 (1979) (distinguishing between civil
and criminal standards of proof). Even if one accepts that a Judicial finding of
Bivens liability combined with an Executive Branch refusal to prosecute or
extradite would undermine a foreign country’s respect for the Executive
Branch, it is difficult to explain how such concerns are only present when a
foreign national is injured abroad, but not when a foreign national is injured
in the United States. It is unclear how recognizing a Bivens remedy for the
unconstitutional conduct of a single federal law enforcement officer acting
entirely within the United States would suddenly inject this Court into
sensitive matters of international diplomacy. Much as with national security,
“the Executive’s mere incantation of . . . ‘foreign affairs’ interests do not suffice
to override constitutional rights.” Def. Distrib. v. United States Dep’t of State,
838 F.3d 451, 474 (5th Cir. 2016) (Jones, J., dissenting).
      The majority also points to Congress’s failure to provide a damages
remedy as an additional factor counseling hesitation. Noting that the language
of 42 U.S.C. § 1983 limits damage remedies to “citizen[s] of the United States
or other person[s] within the jurisdiction thereof,” the majority first argues
that Bivens as the “judicially implied version of section 1983” cannot reach
further than § 1983. However, it is just as likely that by specifying “other
persons within the jurisdiction” Congress intended to extend a § 1983 remedy
beyond U.S. citizenship, rather than commenting on its availability for
wrongful conduct by state actors with extraterritorial effects. Indeed, Congress
enacted § 1983 “in response to the widespread deprivations of civil rights in
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                                  No. 12-50217
the Southern States and the inability or unwillingness of authorities in those
States to protect those rights or punish wrongdoers.” Felder v. Casey, 487 U.S.
131, 147 (1988) (citing Patsy v. Bd. of Regents of State of Fl., 457 U.S. 496, 503–
05 (1982)). Furthermore, while a Bivens action is often described as
“analogous” to a § 1983 claim, Butts v. Martin, 877 F.3d 571, 588 (5th Cir.
2017), the Supreme Court has “never expressly held that the contours of Bivens
and § 1983 are identical.” Malesko, 534 U.S. at 82 (Stevens, J., dissenting).
      The other statutes highlighted by the majority fail to indicate that
Congress expressly intended to preclude a remedy in the circumstances
presented here. For instance, the FTCA’s exclusion of “claim[s] arising in a
foreign country,” see 28 U.S.C. § 2680(k), was meant to codify “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 (2004)
(quoting United States v. Spelar, 338 U.S. 217, 221 (1949)) (emphasis added).
Notably, Bivens seeks to remedy violations of United States constitutional
protections, and the FTCA expressly does “not extend or apply to a civil action
. . . for a violation of the Constitution of the United States.” 28 U.S.C.
§ 2679(b)(2)(A). Additionally, any exception for federal officials under the
Torture Victim Protection Act of 1991 (“TVPA”) has little to say about the
availability of a Bivens claim here. The TVPA provides a remedy for
extrajudicial killings and torture at the hands of individuals acting under color
of foreign law. See 106 Stat. 73, note following 28 U.S.C. § 1350. However, these
individuals would not have been subject to Bivens liability anyways because
Bivens is limited to federal officials acting pursuant to federal law. Dean v.
Gladney, 621 F.2d 1331, 1336 (5th Cir. 1980) (describing Bivens as creating “a
remedy against federal officers, acting under color of federal law”); Kundra v.
Austin, 233 F. App’x 340, 341 (5th Cir. 2007) (“[A] Bivens action requires that
the defendant be a federal officer acting under color of federal law.”).
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      It is also important to note that Abbasi found Congress’s failure to
provide a remedy to the detainees in that case notable because Congressional
interest in the government’s response to the September 11 terrorist attack
“ha[d] been ‘frequent and intense’ and some of that interest ha[d] been directed
to the conditions of confinement at issue.” Abbasi, 137 S. Ct. at 1862 (quoting
Schweiker v. Chilicky, 487 U.S. 412, 425 (1988)); see also id. (noting that at
Congress’s behest the Department of Justice produced a 300-page report on
the confinement conditions at the relevant detention facility). By contrast here,
Congressional interest in cross-border shootings has been negligible making it
more likely that congressional inaction is inadvertent rather than intentional.
See id. (noting that where Congressional attention is high “it is much more
difficult to believe that ‘congressional inaction’ was ‘inadvertent’”). Indeed, as
courts have recognized in the statutory interpretation context, drawing
inferences from Congress’s silence is a difficult and potentially dangerous
exercise. See Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 306 (1988)
(“This Court generally is reluctant to draw inferences from Congress’ failure to
act.”); La. Health Serv. & Indem. Co. v. Rapides Healthcare Sys., 461 F.3d 529,
537 (5th Cir. 2006) (“As is often the case, congressional silence whispers sweet
nothings in the ears of both parties.”); McGill v. E.P.A., 593 F.2d 631, 636 (5th
Cir. 1979) (“The debate concerning the significance of congressional silence is
almost as difficult to resolve as Bishop Berkeley’s famous question concerning
whether there is noise when a tree falls in the forest and no one is present to
hear it.”); Castro v. Chi. Hous. Auth., 360 F.3d 721, 729 (7th Cir. 2004) (noting
that “inferences from congressional silence are treacherous”).
      Finally, the majority asserts that “the extraterritorial aspect of this case”
is itself a special factor counseling hesitation. Looking to the fact that
Hernandez was standing on Mexican soil when he was shot, the majority fears
the uncertain scope of Bivens liability—extending even to U.S.-based military
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                                 No. 12-50217
drone operators—were we to recognize a Bivens remedy here. The majority’s
concern about the effects of such a decision is understandable and I do not take
it lightly. However, the limited and routine circumstances presented here of
individual law enforcement action as well as established Supreme Court
precedent on Bivens claims in the military context assure me that there is little
danger that recognizing a Bivens remedy here will open a Pandora’s Box of
liability.
       First, as I emphasize above, this case is not sui generis among Bivens
cases. In the “common and recurrent sphere of law enforcement,” courts across
the country routinely administer Bivens claims against federal officers for
unconstitutional actions occurring within the United States. See Abbasi, 137
S. Ct. at 1857. I readily acknowledge Hernandez was standing on the Mexican
side of the culvert when he was shot, but it cannot be forgotten that Agent
Mesa was acting from the American side of the culvert. It is hard to understand
how the mere fact that a plaintiff happens to be standing a few feet beyond an
unmarked and invisible line on the ground would suddenly create a host of
administrability concerns or a systemwide impact on governmental operations
that would not otherwise exist if the plaintiff was standing a few feet within
the United States. As ordinary Bivens litigation against a federal law
enforcement officer seeking damages for unconstitutional use of force, “the
legal standards for adjudicating the claim pressed here are well-established
and easily administrable.” Engel v. Buchan, 710 F.3d 698, 708 (7th Cir. 2013)
(noting that extending a Bivens remedy for alleged Brady violations under the
Due Process Clause presented “no great problem of judicial interference with
the work of law enforcement, certainly no greater than the Fourth Amendment
claim in Bivens”).
       But even the majority’s concerns about liability for overseas drone
operations are also unlikely to materialize. Even assuming foreign nationals
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                                  No. 12-50217
injured at the hands of U.S. military personnel overseas could state valid
constitutional claims—a hotly debated topic—the Supreme Court has already
repeatedly rejected Bivens claims in the military context. See Chappell v.
Wallace, 462 U.S. 296 (1983) (rejecting Bivens claims brought by Navy sailors
against superior officers who had allegedly mistreated them on the basis of
race); United States v. Stanley, 483 U.S. 669 (1987) (rejecting Bivens claims
brought by a former soldier against military and civilian officials who allegedly
surreptitiously dosed him with LSD to study its effect on humans).
Furthermore, it is likely that such claims would actually implicate various
special factors counseling hesitation specifically identified in Abbasi such as
requiring a true inquiry into national security issues, intruding upon the
authority of the Executive Branch in military affairs, and actually causing
officials “to second-guess difficult but necessary decisions concerning national-
security policy.” See Abbasi, 137 S. Ct. at 1861.
      In sum, this Court is more than qualified to consider and weigh the costs
and benefits of allowing a damages action to proceed. This case simply involves
a federal official engaged in his law enforcement duties acting on United States
soil who shot and killed an unarmed fifteen-year-old boy standing a few feet
away. I would elect to recognize a damages remedy for this tragic injury. As
Chief Justice John Marshall wrote, “[t]he very essence of civil liberty certainly
consists in the right of every individual to claim the protection of the laws,
whenever he receives an injury.” Marbury v. Madison, 5 U.S. 137, 163 (1803).
In this case, I would recognize a Bivens remedy for this senseless cross-border
shooting at the hands of a federal law enforcement officer. Therefore, I
respectfully dissent.

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